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filed: July 11, 1980.


No. 1336 October Term, 1979, Appeal from Order entered by the Court of Common Pleas, Civil Division, of Schuykill County at S-653-79.


Robert J. Manara, Reading, for appellant.

Alvin Maurer, City Solicitor, Schuylkill County, participating party.

Price, Cavanaugh and Watkins, JJ. Price, J., dissents.

Author: Cavanaugh

[ 279 Pa. Super. Page 403]

Following a hearing in the Court of Common Pleas of Schuylkill County on May 12, 1979, Donna Hutchinson, appellant, was committed to Wernersville State Hospital for a period of ninety days pursuant to the "Mental Health Procedures Act," [MHPA], Act of July 9, 1976, P.L. 817, No. 143, § 304, as amended, 50 P.S. § 7304. Appellant represented by counsel other than hearing counsel, filed a motion for reconsideration of the commitment order in which she alleged, inter alia, that hearing counsel was ineffective for failing to object to hearsay testimony. This motion was denied on June 21, 1979, and appellant filed a timely appeal raising only the issue of ineffectiveness.

[ 279 Pa. Super. Page 404]

On May 19, 1979, appellant was admitted to the Pottsville Hospital for involuntary emergency examination for a period not to exceed seventy-two hours on the petition of appellant's grandmother, Mrs. Victoria Lech. 50 P.S. § 7302. Mrs. Lech, with whom appellant resided, alleged that appellant had been physically abusive toward her and had struck her with an object. On May 21, 1979, the examining physician at the hospital petitioned the court to commit appellant for involuntary treatment for a period of not more than ninety days. 50 P.S. § 7304. A hearing was held the following day.

For a court to order involuntary treatment under 50 P.S. § 7304, it must be determined that a person is severely mentally disabled and in need of treatment. An individual is considered severely mentally disabled when he or she poses a clear and present danger of harm to others or to himself or herself. 50 P.S. § 7301(a). Instantly, appellant was detained on the grounds that she posed a clear and present danger to others. To establish dangerousness to others, it must be shown that within the past thirty days the person has inflicted or attempted to inflict serious bodily harm on another and that there is reason to believe that such conduct will be repeated. 50 P.S. § 7301(b)(1).

At the hearing, Dr. Albert Kazlauskas, a psychiatrist, testified that the May 19, 1979, commitment forms indicated that within the last thirty days appellant had struck her grandmother and also had possessed a gun with which she had threatened to kill someone. Although the Schuylkill Haven police had taken the gun from her, appellant had continued her threats to kill someone. Dr. Kazlauskas also testified as to appellant's prior history of psychiatric treatment and his personal examination of her during the emergency commitment. He concluded that appellant was suffering from a severe mental disability and without treatment she was a serious threat to the people of the community. Appellant took the stand and denied threatening or striking her grandmother and possessing a gun during that period of time. She testified that her relatives were hostile

[ 279 Pa. Super. Page 405]

    toward her and admitted that she was not taking the medication prescribed by the doctor. At the close of the hearing, the trial court ordered appellant to receive in-patient treatment at Wernersville State Hospital for a period not to exceed ninety days.

We first must determine whether appellant may raise the issue of ineffective assistance of counsel in an appeal from a civil commitment proceeding under 50 P.S. § 7304. The lower court found that because the instant involuntary commitment hearing is a civil proceeding, appellant does not have a constitutional right to the effective assistance of counsel. Therefore, since appellant's hearing counsel failed to object to hearsay evidence admitted at the hearing, the lower court, relying upon Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), held that the issue had been waived.

Involuntary civil commitment of mentally ill persons constitutes a substantial deprivation of liberty which may only be accomplished in accordance with due process protection.*fn1 Appeal of Niccoli, 472 Pa. 389, 395 n.4, 372 A.2d 749, 752 n.4 (1977); Commonwealth v. McQuaid, 464 Pa. 499, 517, 347 A.2d 465, 475 (1975); Commonwealth ex rel. Finken v. Roop, 234 Pa. Super. 155, 163, 339 A.2d 764, 768 (1975) appeal dismissed 424 U.S. 960, 96 S.Ct. 1452, 47 L.Ed.2d 728 (1976). See also: Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). This rationale was recognized by the General Assembly in enacting the present MHPA:

It is the policy of the Commonwealth of Pennsylvania to seek to assure the availability of adequate treatment to persons who are mentally ill, and it is the purpose of this act to establish procedures whereby this policy can be ...

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