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MATTHEW REMLEY. APPEAL MATTHEW REMLEY (01/20/84)

filed: January 20, 1984.

IN RE MATTHEW REMLEY. APPEAL OF MATTHEW REMLEY


No. 1087 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Luzerne County, Civil Division, at No. 768-C of 1982.

COUNSEL

John J. Thomas, Assistant Public Defender, Wilkes-Barre, for appellant.

Ralph J. Johnston, Jr., Wilkes-Barre, for participating party.

Brosky, Montgomery and Cercone, JJ.

Author: Brosky

[ 324 Pa. Super. Page 166]

This appeal is from an order involuntarily committing appellant, an 82 year old man, to a state mental hospital for 20 days under 50 P.S. § 7303. Appellant contends that, contrary to the enabling statute, he was committed because he was senile and not because he posed "a clear and present danger of harm to others or to himself." 50 P.S. 7301(a).*fn1 We agree and, accordingly, reverse the commitment order.

First, we note that although the commitment period in question has long since expired, we will, nonetheless consider it. We do so in order to maintain appellate oversight of this liberty-depriving procedure. "Appeals from orders for involuntary commitment rarely reach this Court within 90 days. Were we to dismiss such appeals as moot, the challenged procedure could continue, yet its propriety would evade our review. Accordingly, we will reach the merits of this case." In re Ann S., 279 Pa. Super. 618, at 621 n. 2, 421 A.2d 370, at 372 n. 2 (1980).

A statute prohibits the commitment of the senile qua senile. ". . . Persons who are mentally retarded, senile, alcoholic, or drug dependent shall receive mental health treatment only if they are also diagnosed as mentally ill, but these conditions of themselves shall not be deemed to constitute mental illness . . ." 50 P.S. § 7102. The Supreme Court of this Commonwealth has written on the mentally retarded provision. See In re Schmidt, 494 Pa. 86, 429 A.2d 631 (1981). It remains for us here to enforce the provision regarding the senile.

Since appellant could not have been properly committed because he was senile, it remains for us to determine if he otherwise met the statutory criteria for involuntary commitment. The relevant statute provides, in relevant part, that

[ 324 Pa. Super. Page 167]

    a person who is "severely mentally disabled" may be involuntarily committed. "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." 50 P.S. § 7301(a). The statute then amplifies the standard of harm to others. "Clear and present danger to others shall be shown by establishing that within the past 30 days the person has inflicted or attempted to inflict serious bodily harm on another and that there is a reasonable probability that such conduct will be repeated." 50 P.S. § 7301(b)(1).

The only testimony of any kind relating in any way to appellant's having inflicted or having attempted to inflict serious bodily injury to others or to a reasonable probability of such actions being repeated is as follows.*fn2

He had a knife that he peels, I give him for oranges and apples; he peels them and I trust him with it, they didn't. I did trust him; so anyway I turned around and I want to take it off him and that's when he like he swatted me one -- I was gonna swat him back and I give him a push . . .*fn3

The second incident was testified to as follows:

R. JOHNSON:*fn4 Did he ever kick you in ...


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