Appealing a Final Protection from Abuse Order to Superior Court

The most commonly issued restraining orders in Pennsylvania are those issued for domestic violence, known as a Protection from Abuse (PFA) order. A PFA is a court order that protects an applicant from domestic abuse by a family member or current or former intimate partner. Created by the Pennsylvania Protection from Abuse Act, the 1990 law details court and police policies and the procedures both the alleged abuser and victim must follow during the PFA process. See Pa. Stat. 23 § 6101, et seq. (2018).

Protection from Abuse Application Process

The statute broadly defines abuse as:

(1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon; (2) Placing another in reasonable fear of imminent serious bodily injury; (3) The infliction of false imprisonment pursuant to 18 Pa.C.S.A. § 2903; (4) Physically or sexually abusing minor children, including such terms as defined in Chapter 63; and (5) knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under the circumstances which place the person in reasonable fear of bodily injury.

23 Pa.C.S.A. §6102.

As part of the PFA process, the plaintiff will apply for a temporary PFA, which remains in place until the court can hold a final PFA hearing. A court can issue the final PFA for up to three years.

Temporary PFA

To begin the PFA process, the individual files a petition with the Court of Common Pleas in their location. In the petition, the plaintiff sets forth statements of fact that match the statute alleging that an act of abuse or a threat of abuse occurred. According to Pennsylvania court statistics, people applied for almost 39,000 temporary PFAs in 2019. Of those cases, the courts granted more than 34,000 and denied only 3,804.

The bar for granting a temporary PFA is low. A judge will issue the order if the parties have the requisite qualifying domestic relationship and the judge feels that the applicant is in immediate danger. The plaintiff's success often relates to how well the facts alleged match the statute's definition of abuse. The judge will assume that everything the plaintiff alleged in their initial application is true. If the judge communicates with the plaintiff before issuing the temporary PFA, it will be in an ex parte hearing, and the defendant will have no opportunity to respond until the court schedules a formal hearing.

After the judge grants the initial temporary PFA, the law requires that the court hold a final hearing where both parties have notice and the opportunity to participate. The law states, “[w]ithin ten business days of the filing of a petition under this chapter, a hearing shall be held before the court, at which the plaintiff must prove the allegation of abuse by a preponderance of the evidence.”

Final PFA Hearing

The PFA hearing set by the court is your first and only chance to respond to the plaintiff's allegations in the PFA petition. Your best defense to a PFA is a good offense, meaning you'll have a better chance of defeating a PFA if you challenge it at the initial hearing rather than waiting to appeal a default judgment later. At the hearing, you and your attorney will have the opportunity to present witness testimony and evidence and cross-examine plaintiff witnesses.

You should not skip the final PFA hearing. In 2019, of the more than 38,000 PFA petitions filed, the plaintiff failed to appear or withdrew the complaint in more than 17,800 cases. You cannot assume that the plaintiff will drop the matter or fail to show up. However, if you fail to show up, the judge is much more likely to grant a final PFA against you without your input.

Appealing a Final PFA: Why Appeal a Protection from Abuse?

A final PFA order can remain in place for up to three years. The order can contain a wide variety of provisions, with a focus on preventing you from contacting or approaching the plaintiff in any way, including via email, text, or online. The PFA may also remove you from a shared home, even if you own the property, and restrict your child custody or visitation rights. Often the judge will include provisions providing financial support for a spouse and children and order you to attend counseling or drug or alcohol treatment programs.

While a PFA is a civil rather than criminal matter, violating a PFA is a criminal offense. The PFA statute requires the police to arrest you for a violation, even if they didn't witness it. As long as they have “probable cause” or a “credible victim statement” claiming you violated the order, the police can arrest you without a warrant. This portion of the PFA statute – the contempt provision – is what gives the law its teeth. Many first-time violators will get informal probation, but a violation can result in up to six months in jail. However, even if violating a PFA landed you with only probation, you will have a criminal record.

Appealing a Protection from Abuse Order

If you wish to appeal a final PFA, you have two options:

  • You can file a motion for reconsideration in the same court, or
  • You can file an appeal of the PFA to the Superior Court.

1. Motion for Reconsideration

You can file a Motion for Reconsideration within ten days of the order. In this motion, your attorney will argue that the judge made a mistake in entering the order against you. Specifically, your attorney will argue that the judge made a mistake of law, mistakes of fact, or both. Grounds for reconsideration may include:

  • The court based its decision on an incorrect interpretation or application of the law,
  • The applicable law changed, or
  • Failing to reconsider the order will result in manifest injustice.

However, the Motion for Reconsideration will not reargue the entire final PFA hearing. Moreover, “manifest injustice” is a high hurdle to overcome.

2. Appeal to Superior Court

You can appeal a final PFA to Superior Court within 30 days of the order by filing a “Notice of Appeal” with the Protothonary's Office. Your attorney will also need to file a legal brief and additional supporting documents, including a transcript of the final PFA hearing. However, an appeal is not a complete do-over. In your appeal, your attorney will argue that the judge made a specific mistake of law, a mistake of fact, or both.

For example, in M.K. v. J.M., the defendant appealed a PFA concerning minor children. See M.K. v. J.M., No. 716 WDA 2020 (Pa. Super. Ct. Mar. 26, 2021). In that case, the mother appealed after a judge granted a PFA against her concerning one of her minor children after she allegedly spanked and slapped him. The court granted sole custody of one child and primary physical custody of a second child to the father. The court allowed the mother only partial physical custody of the second child. At the PFA trial, one of the minor children purportedly produced a cell phone with a video of the alleged incident, and the court watched the video several times. However, neither party asked that the court enter the video into evidence, and the court did not do so.

After that, the court granted the PFA after issuing findings of fact and an opinion. The case record did not indicate that the court ever entered the video into evidence. However, the judge did indicate in an opinion that they viewed the video and described actions that took place in the video. The judge then applied the actions in the video to the legal definition of “abuse” when ruling on the final PFA.

On appeal, the Pennsylvania Superior Court stated, “It was improper for the court to base its decision on material outside the record, and we cannot affirm the court's order based on that material.” The Superior Court then reversed the PFA order holding that the court abused its discretion in issuing the final PFA order based on evidence not in the record. Id. at 8. While the court reversed the PFA, it didn't rehash the entire PFA trial but ruled on a mistake of the law by the court below.

While the appellate in the case above was victorious, appeals can be an uphill battle. That's why it's so important that you attend the hearing and mount a full defense during the final PFA hearing. If you wait for an appeal, the final order will be a much greater obstacle to overcome.

Hire an Experienced Pennsylvania PFA Lawyer

If you're facing a final hearing for a protection from abuse order or if you need to appeal a final PFA order, you need professional legal advice. Attorney Joseph D. Lento has unparalleled experience defending PFA orders throughout Pennsylvania. He can help you too. Give the Lento Law Firm a call at 888-536-3686 or contact them online.

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Attorney Joseph D. Lento has more than a decade of experience successfully resolving clients' criminal charges in Philadelphia and the Pennsylvania counties. If you are having any uncertainties about what the future may hold for you or a loved one, contact the Lento Law Firm today! Criminal defense attorney Joseph D. Lento will go above and beyond the needs of any client, and will fight until the final bell rings.

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