How to Defend Against a Protection from Abuse Case in Pennsylvania - Helpful Case Law - Part I

Posted by Joseph Lento | Jan 07, 2017 | 0 Comments

When facing a Protection from Abuse case in Pennsylvania, also known as a PFA case, everything can be at stake for defendants; be it a person's child custody rights; present job or future employment prospects; school and education options, professional licensing, when the defendant is a doctor, nurse, teacher, and so forth; firearm rights; and the like.  With so much at stake, it is understandable that defendants often have countless questions.  A common question is, "What is the law regarding PFAs in Pennsylvania?"  Another common question is, "How will Pennsylvania PFA law affect my case?"  All PFA attorneys worth their salt know that taking the proper steps when defending against allegations of domestic abuse is critical; all PFA defendants will also be well-served to understand the law and how it can affect their PFA defense.

PFA cases taking place throughout Pennsylvania fall under the Pennsylvania Protection from Abuse statute, and allegations of abuse can be in various forms: domestic violence, spousal abuse, and child abuse for example.  Philadelphia, and the several Southeast Pennsylvania counties outside of Philadelphia, all have their own specific PFA practice and procedure however.  The counties immediately outside Philadelphia where, depending on whether a temporary PFA or final PFA is being addressed, the county's respective Magisterial District Court or Court of Common Pleas will preside over the matter, include, Montgomery County, Delaware County, Bucks County, and Chester County. 

As important as it is to understand the applicable county's Protection from Abuse practice and procedure, it is equally important to understand Pennsylvania Courts' interpretation of Pennsylvania PFA law, whether defending against a Philadelphia PFA, a Montgomery County PFA, a Delaware County PFA, a Bucks County PFA, or a Chester County PFA.  The reason being is that although Pennsylvania legislators make laws that address general considerations, Pennsylvania Courts apply the laws made by the Pennsylvania legislators to the specific factual situations before the Court, and in doing so, "interpret" the law, the Pennsylvania Protection from Abuse Act in cases involving PFA's.  Through Pennsylvania Courts' interpretation of the PFA Act, Pennsylvania Courts issue "decisions" that indicate the Courts' interpretations of the PFA Act, and as such, how the PFA Act will apply to the specific facts of the PFA case at hand. 

The following considerations involve a selection of general matters addressed by Pennsylvania Court decisions (the Superior Court of Pennsylvania in particular, for reasons explained below):

How does the Pennsylvania Protection from Abuse Act define "abuse?"

The Protection from Abuse Act in Pennsylvania, codified by statute at 23 Pa.C.S.A. § 6101, defines "abuse" as, among other things, "placing another in reasonable fear of imminent bodily injury."  It is possible for a person to be placed in reasonable fear of imminent bodily injury based upon phone calls, when the calls are coupled with the alleged abuser's past history of violence.  Hood-O'Hara v. Wills, 873 A.2d. 757 (Pa.Super 2005).  PFA defendants in Pennsylvania are often interchangeably referred to as "defendants" or "respondents."  PFA plaintiffs are often interchangeably referred to as "plaintiffs," "complainants," or "petitioners." 

Is a PFA complainant required to have medical evidence of an injury?

Nowhere in the Protection from Abuse Act, or in the body of case law interpreting it, is there a requirement that a police report be filed or that there be medical evidence of an injury in order to sustain the burden of proof.  A PFA petition simply must show , by a preponderance of the evidence, that the PFA complainant suffered abuse as defined by the PFA statute.  Hood-O'Hara v. Wills, 873 A.2d. 757 (Pa.Super 2005).  

Can threats against a third party allow the complainant to get a PFA?

Neither threats against a former lover's co-worker nor a threat to expose potentially damaging financial information about the former lover's employer amounts to an act of abuse under the Protection from Abuse Act, 23 Pa.C.S.A. § 6101-6117.  Such threats are insufficient to support a finding that would make the former lover to be in "reasonable fear of bodily injury," a requisite for the protection afforded by the Act.  D.H. v. B.O., 734 A.2d 409 (Pa.Super. 1999).

Can a final PFA order be appealed in Pennsylvania?

Pennsylvania Family Courts are divisions of the applicable county's "Court of Common Pleas."  Decisions involving PFA cases from the applicable Court of Common Pleas, be it Philadelphia, Montgomery County, Delaware County, Bucks County, or Chester County, can be appealed to the Pennsylvania Superior Court, although certain conditions have to be met.  Most importantly, a party, be it the PFA complainant or PFA defendant, has to appeal the trial Court's decision to the Pennsylvania Superior Court within 30 days. 

In one such PFA appeal, the husband appealed a final Protection from Abuse order that was entered against him, and for the PFA plaintiff.  When a claim is presented on appeal that the evidence was not sufficient to support as order of Protection from Abuse, the appellate court reviews the evidence in the light most favorable to the petitioner, granting the benefit of all reasonable inferences in order to determine whether the evidence was sufficient by a preponderance of the evidence to sustain the trial court's conclusion.  Fonner v. Fonner, 731 A.2d. 160 (Pa.Super 1999)

What kind of evidence will be allowed at a PFA hearing?

As noted, the Family Court of Philadelphia, Montgomery, Delaware, Bucks, and Chester County all have their own particular protocol as to how PFA cases are addressed and decided.  More importantly regarding PFA evidence consideration, individual Family Court judges have their own preferences which must be considered when trying a PFA case.  Ultimately, however, the Protection from Abuse Act requires flexibility in the admission of evidence and prior instances of abuse are relevant and admissible.  Hood-O'Hara v. Wills, 873 A.2d. 757 (Pa.Super 2005).  

Can a PFA complainant testify at a final PFA hearing to allegations not made in the PFA complaint?

A PFA complainant filing a Protection from Abuse petition will not be rigorously limited in his or her testimony to the specific allegation of abuse found in the PFA complaint, also known as the PFA petition.  Some flexibility must be allowed in the admission of evidence relating to past acts of abuse.  Raker v. Raker, 847 A.2d. 720 (Pa.Super. 2004).

What is the goal of the Pennsylvania Protection from Abuse Act?

The primary goal of the Protection from Abuse Act, 23 Pa.C.S.A. § 6101, et. seq., is not retrospective punishment but "advance prevention of physical and sexual abuse."  Fonner v. Fonner, 731 A.2d. 160 (Pa.Super 1999)

How does the PFA Act compare to the Pennsylvania Child Custody Act and the Child Protective Services Law?

Neither the Pennsylvania Child Custody Act nor the Child Protective Services Law (CPSL) are substitutes for the emergency provisions of the Protection from Abuse Act.  The Child Custody Act does not provide the immediate attention or protection that the PFA Act provides.  The Child Protective Services Law provides procedures for the reporting and investigation of child abuse in which the county Child and Youth Services performs the investigations and arranges for the removal of a child from the home.  

In Philadelphia, these matters are handled by the "City of Philadelphia Department of Human Services;" in Montgomery County, by the "Office of Children and Youth;" in Delaware County, by the "Office of Children and Youth Services;" in Bucks County, but the "Children and Youth Services Agency;" and in Chester County, by the "Department of Children, Youth and Families.")  

A Protection from Abuse order, however, can be obtained ex parte (where only one party appears before the Court) and immediately.  The PFA Act broadly defines abuse to allow the petitioner to get protection from abuse that may not rise to the level of abuse required for action under the CPSL.  Egelman v. Egelman, 728 A.2d 360 (Pa.Super. 1999).

Can phone threats allow for a PFA in Pennsylvania?

C.L.B., the defendant's ex-girlfriend, filed a Protection from Abuse petition against her former boyfriend, J.S.B., wherein she alleged that the ex-boyfriend had phoned her to retrieve his clothes from her residence.  In the course of this phone call, the two discussed criminal charges that the ex-boyfriend was facing for destroying C.L.B.'s property.  During this phone conversation, the ex-boyfriend made a number of violent threats against his ex-girlfriend.  In prior incidents, J.S.B. had been physically and mentally abusive towards his ex-girlfriend and her minor children, including kicking holes in the walls and doors, smashing the ex-girlfriend's son's TV and having "fits of rage" against the children.  The ex-boyfriend had also destroyed her car and other household property. 

On the day of the PFA trial, the PFA trial court dismissed, with prejudice, the ex-girlfriend's complaint and temporary PFA order, stating that a phone call between the parties in a PFA case cannot constitute a protection from abuse order.  It should also be noted that the ex-girlfriend had not personally appeared for the PFA trial because she was reportedly hospitalized.  Her attorney's request for a continuance of the Protection from Abuse trial was denied.  On appeal to the Pennsylvania Superior Court, C.L.B. argued that the trial court erred by failing to grant the continuance as requested by her attorney and by failing to hold an evidentiary hearing on her claims of domestic violence and abuse. 

The Protection from Abuse Act, 23 Pa.C.S.A. § 6101, et. seq., declares that evidentiary hearings are mandatory.  The victim of abuse need not suffer actual injury, but rather be in reasonable fear of imminent serious bodily injury.  The Pennsylvania Superior Court noted that the trial court articulated only one basis for its decision: namely, an apparent belief that phone calls can never form the basis of a PFA order.  That belief was incorrect.  It is possible for a person to be placed in reasonable fear of imminent bodily injury based on phone calls, particularly when coupled with the alleged abuser's past history of violence.  The case was remanded to the trial court to hold an evidentiary hearing and to take evidence from C.L.B. on the allegations set forth in the PFA petition.  Burke v. Bauman, 814 A.2d 206 (Pa.Super. 2002).

Does a PFA complainant have to prepay for the cost of filing for a Protection from Abuse order?

The language in 23 Pa.C.S.A. § 6106(b)-(c) of the Pennsylvania Protection from Abuse Act makes it perfectly clear that a plaintiff is not required to prepay for the cost of filing a petition.  The trial court order imposing a prepayment was reversed in the appellate case that addressed this matter.  As a result, Family Court will not charge a PFA plaintiff to pay when filing, whether at:

What happens if a complainant does not appear for a PFA final hearing?

The cases of Eaches v. Steigerwalt and Commonwealth v. Ortiz; Appeal of Acevedo, both cited at 569 A.2d 975 (Pa.Super. 1990), declares that a court may impose costs upon a claimant filing under the Protection from Abuse Act, Act of October 7, 1976, P.L. 1090, No 218, 35 § 10181 et. seq. [23 Pa.C.S.A. § 6101, et. seq.], who fails to appear for a scheduled hearing.

What if the Protection from Abuse order is to protect a child in Pennsylvania?

The inclusion of the definition of abuse from the Child Protective Services Act, 23 Pa.C.S.A. § 6301-85, in the Pennsylvania Protection from Abuse Act does not indicate that the Pennsylvania legislature intended the PFA to extend only to acts causing serious physical injury to a child.  The definition of abuse under the PFA is broader than the definition of child abuse under the Child Protective Services Act.  It is not necessary that the physical harm to the child be as serious as that which is required for a child to be removed from its home and placed into protective custody.  Viruet ex rel. Velasquez v. Cancel, 727 A.2d 591 (Pa.Super. 1999).

Can a child custody order override a PFA order in Pennsylvania?

Section 6108(a)(4) of the Protection from Abuse Act bars an award of child custody, whether issued prior to or after a Protection from Abuse order is issued, to nullify the Protection order.  A child custody order cannot therefore override a PFA order in Pennsylvania.  Dye v. McCoy, 621 A.2d. 144 (Pa.Super. 1993).  This is one reason why parents who are accused of committing abuse under the PFA Act against their child or children have to be vigilant in defending against such claims.  A final PFA order can last for three years in Pennsylvania, and can be continued upon motion of the plaintiff.  If a standard PFA final order is granted on behalf of the child or children against the defendant, the defendant's rights to his or her child or children be severely limited, if not altogether precluded, for a minimum of three years in most cases.

Can parties make agreements involving Pennsylvania abuse actions?

In an unusual case, the wife filed a petition for Protection from Abuse, which culminated in a consent order wherein the wife was to pay the husband $1,500 when she received her income tax return and the husband was, in exchange, to return certain household items to the wife.  When the wife did not pay the money to the husband, the husband petitioned to have the order enforced.  The wife challenged the wife's authority to enforce the order under the Protection from Abuse Act, 23 Pa.C.S.A. § 6101, claiming that payment of money by the person abused is not one of the forms of relief provided under the Act.  The Pennsylvania Superior Court initially noted that the wife and husband entered into a "consent order" while the parties were each represented by their own PFA attorneys.  Section 6108 of the Act states that the Court  "may...approve any consent agreement to bring a cessation of abuse... ." Lee v. Carney, 645 A.2d. 1363 (Pa.Super. 1994)

Southeast Pennsylvania PFA Defense Attorney | Philadelphia, Montgomery, Delaware, Bucks, & Chester County

The stakes are high in Protection from Abuse cases for both plaintiffs and defendants, and at times, children when involved in such matters.  Plaintiffs of course seeking protection need to make sure that everything that can be done to obtain a final PFA is done so that they or their loved ones can be protected from potential future abuse.  Defendants, however, at times arguably have more to lose.  Defendants responding to domestic violence and abuse allegations must make sure that their interests are protected because when a PFA is issued against a defendant, the consequences can be severe and long-term.  These consequences can affect not only a defendant's education or present employment, but also their future professional and academic goals.  A defendant can also lose his or her custody rights and basic constitutional rights, including where they call home and their right to firearms, among others.  In addition, if a PFA is granted against a defendant, violating a PFA can result in additional consequences yet, including criminal charges and the prospect of jail time. 

Knowing the law is only half the battle; getting your position heard and recognized in PFA court is also critical to success.  Ultimately, a Pennsylvania PFA attorney experienced with PFA practice and procedure in Philadelphia, Montgomery, Delaware, Bucks, and Chester County can help protect an accused person's interests and defend his or her rights.  Contact our Family Law Team today to learn how we can help.

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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