Can a Protection from Abuse Defendant Be Evicted From His or Her Residence in Pennsylvania?

Posted by Joseph Lento | Aug 17, 2016 | 0 Comments

When Protection from Abuse (PFA) defendants are served notice of a temporary PFA order, they often have many questions.  They often do not understand what their obligations are under the law, and they are almost always concerned about the potential consequences of the PFA order, both short and long-term.  Abused plaintiffs should obviously be deserving of protection under Pennsylvania Family Law, but at times, PFA's are filed against a former loved one because of marital or domestic discord that may not rise to the level of actual domestic abuse. 

For example, if a domestic partner, be it one's husband, wife, boyfriend, or girlfriend, returns home too late after a night on the town and an argument ensues, is this "abuse" of the partner who now suspects cheating?  Along the same lines, does a domestic partner's unfaithfulness in a relationship give cause for the other partner who feels "wronged" to file for Protection from Abuse against the unfaithful partner?   The answer to these questions is an emphatic "no," but unfortunately, sometimes PFA plaintiffs "abuse" the PFA process by seeking retribution on the offending partner despite the offending partner's behavior not rising to the level of actual domestic abuse.  The offending partner's behavior may be entirely inappropriate or wrong, but when PFA plaintiffs leverage the PFA process to their own advantage, often by seeking the eviction of the PFA defendant, this does injustice to those victims of legitimate domestic abuse.  Whether the domestic violence case involves a legitimate claim or not, PFA defendants, when sharing a residence with a plaintiff, be it a house or apartment, will often ask, "Can I be evicted from my home because of a Protection from Abuse in Pennsylvania?"

PFA Evictions Can and Do Occur

A PFA defendant I recently represented experienced a situation similar to the above.  My client's partner was displeased with their relationship and nothing more.  Unconcerned with the fact that the plaintiff was doing injustice to bona fide victims of domestic abuse and domestic violence by making baseless claims, the plaintiff nonetheless wanted my client out of their shared house. 

Prior to my involvement in the case (and prior to its ultimate successful resolution), the plaintiff made certain (false) allegations against the defendant at an emergency PFA hearing, and also represented to Philadelphia Family Court that both the plaintiff and defendant rented the house together.  (Unfortunately for the defendant at the time of the emergency PFA hearing, the plaintiff had fraudulent documentation to back up the claim that the plaintiff and defendant had an equal interest in the house.) 

After Philadelphia Family Court granted the emergency PFA order and the plaintiff's request for eviction, the defendant was served with the PFA order and evicted from the house.  The defendant thereafter contacted me for help.  Because evictions often occur as a result of PFA filings in Pennsylvania, and because evictions, whether temporary or long-term, can be life-changing, the law regarding when a PFA defendant can be evicted under Pennsylvania law deserves discussion.

Pennsylvania Family Law Allows PFA Evictions

A situation that often arises is when a domestic partner resides with another in a house or apartment, and a PFA is filed by one partner against the other.  Whether a partner is the victim of actual domestic abuse or not, if the PFA plaintiff is successful in arguing that a temporary PFA order is warranted pending a final PFA hearing on the matter, Pennsylvania Family Law, and specifically, 23 Pa.C.S.A. Section 6108(a), states that Family Court may grant possession of the residence or household to the PFA plaintiff (be it a house, apartment, condominium, etc.), to the exclusion of the PFA defendant, by evicting the defendant if the residence or household is jointly owned or leased by the "entireties," or is owned or leased solely by the plaintiff.  Pennsylvania Family Law can also "restore possession" to the plaintiff if the residence or household is jointly owned or leased by the "entireties," or is owned or leased solely by the plaintiff. 

What these provisions of Pennsylvania Family Law mean for PFA defendants is that Family Court has the power to remove a person from his or her residence.  Pennsylvania Family Law also prohibits a defendant from entering the residence in any capacity without a Family Court judge ordering otherwise; even to only retrieve clothes or personal belongings pending a final PFA hearing.  Depending on the circumstances this may not seem fair, but when appropriate under the law, Family Court most definitely has the power to oust a PFA defendant from where he or she lives (or "restore possession" to a plaintiff who was not residing in the residence at the time the initial PFA order was granted); even prior to that person having the opportunity to defend themselves against the plaintiff's allegations - allegations which are part of the petition which provided the basis for the temporary PFA order to be granted. 

Although a final PFA hearing is by law scheduled within ten days after the temporary PFA order is granted (with allowances for weekends, holidays, etc.), these ten days can be an eternity for a defendant who has been evicted from his or her house or apartment.  (This is not to mention the fact that a final PFA order can be imposed for a maximum of three years; consequently, a PFA defendant can be evicted from his or her home for more than three years - from the time an initial PFA with eviction is granted until the time a three-year final PFA order expires.)

Complicating Matters Further

PFA evictions can be made more complicated by how the initial PFA order is issued.  A plaintiff who files for and obtains an "emergency" PFA order (rather than a "temporary ex parte" PFA) because the filing took place when Family Court was closed (such as on the weekend, late at night, or on a holiday) may be able to get Family Court (through the applicable law enforcement authority) to evict the defendant despite such action being inappropriate under the law.  Emergency PFA orders are arguably granted with a lesser standard of review than a "temporary ex parte" PFA, and for this reason, a defendant at times can be evicted even if the plaintiff has no legal claim to the residence. 

In Philadelphia County for example, an "emergency" PFA order, which is issued by an Emergency Protection from Abuse "Master" (rather than a Family Court judge), is reviewed at the earliest opportunity by a Family Court judge who sits in the Philadelphia Court of Common Pleas.  Despite this later "oversight" (which takes place prior to the final PFA hearing), defendants' interests often are not represented or protected at this stage of the proceedings.  Only when a Pennsylvania PFA attorney is involved at this early stage of the proceedings can the necessary steps be taken so that a defendant is not unnecessarily removed from his or her residence.  

This specific situation is one of the many pitfalls that a defendant can face in the Pennsylvania PFA process.  Another pitfall that defendants often do not recognize is that even if a final PFA order is entered against a defendant at a final PFA hearing, the plaintiff, in most instances, will only have a valid claim for the defendant to be evicted from the residence, even if shared at the time the abuse was alleged, if both the plaintiff's and defendant's name is on the lease or deed, or if the defendant has a duty to provide support for the plaintiff.

PFA Practice and Procedure Varies By Pennsylvania County

Highly-experienced in representing both PFA plaintiffs and PFA defendants, and in particular, plaintiffs seeking the eviction of an abusive partner and defendants seeking to remain in their homes, I have perspective from both sides of the battlefield.  Just as every relationship is unique, every Protection from Abuse action is unique, and each case requires an individualized approach.  The approach required is made further involved because, despite the fact that Pennsylvania Family Law is consistent across Pennsylvania counties, each county has a specific PFA practice and procedure; therefore, how PFAs are pursued and defended against (and with that, how evictions are handled) varies between Philadelphia, Montgomery, Delaware, Bucks, and Chester County for example.  

In Your Corner

Whether a PFA plaintiff or PFA defendant, parties have a small window of opportunity to have a PFA granted or dismissed.  With the stakes so high for both plaintiffs and defendants, including the possibility of eviction, it is always best to have a highly-experienced and highly-dedicated Pennsylvania PFA attorney in your corner as early as possible.

About the Author

Joseph Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento is a veteran of one of the nation's busiest family courts with nearly 20 years' experience passionately helping families. By day, he worked in the trenches of family court, and at night, he studied the law. He helped countless families while working at family court, and he went on to become an attorney, dedicating his law practice to continuing the work he started years earlier. Mr. Lento's experience both behind the scenes and on the front lines allows him to understand a client's family law matter from all angles, and allows him to find and employ the most effective strategies to get favorable outcomes for any client. Joseph D. Lento is licensed in Pennsylvania New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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