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PENNY R. (05/07/86)

filed: May 7, 1986.


Appeal from the Order in the Court of Common Pleas of Bradford County, Civil Division, No. 84-14,591


Joan F. Shullo, Scranton, for appellant.

Leonard J. Frawley, Jr., Towanda, for appellee.

Tamilia, Johnson and Hoffman, JJ. Johnson, J., dissents.

Author: Tamilia

[ 353 Pa. Super. Page 72]

This appeal presents the unusual circumstance of consensus between appellant and respondent, Donnie R., who raise identical opposition to an Order of the Court of Common Pleas of Bradford County. It is also a case of first impression with respect to application of 35 Pa.S.A. § 10185, the hearing provisions of the Protection from Abuse Act.*fn1

Initiation of the protection action began conventionally with a petition filed by appellant on behalf of herself, and the parties' two daughters, one of whom is a minor. A restraining Order was issued on February 16, 1984, and after a hearing, a stipulation was entered to the effect that appellant would remain in sole custody of the minor child and the marital home, and that both parties would attend counseling sessions. The stipulation was confirmed by the Order of May 25, 1984, with the (motioned) modification that appellee would be allowed overnight visitation in the marital home on weekends. The parties complied with all provisions of the Order. On June 15, 1984, the lower court sua sponte vacated the May 25 Order thereby discontinuing home visitation indefinitely. After the appropriate intervening procedures, this appeal was lodged.

[ 353 Pa. Super. Page 73]

The basis for the contested Order was an unsolicited letter of May 2, 1984, which, because of administrative error, had not immediately come to the attention of either the lower court or counsel; it had been made part of the file for a dependency proceeding related to the parties' minor daughter, since juvenile authorities had requested emergency placement of the child. The author of this letter, the Director of the Mental Health Center which had at one point provided counseling services to the parties, indicated that overnight home visitation by appellee was adverse to the child's best interests. Because the dependency action would be rendered unnecessary by curtailing of appellee's home visits, the trial court felt compelled by the situation, and authorized by § 10185(b), to issue a temporary ex parte order as an emergency measure.

The requested hearing on petition by both parties to vacate the Order permitting in-home visits by the appellee, was carefully structured by all those involved, including the child advocate originally appointed for the dependency hearing, to avoid reaching the substantive matters underlying that Order by a proceeding in juvenile court on the dependency petition. The question we must address, therefore, is restricted to whether the court abused its discretion in effecting the ex parte Order without a meaningful hearing prior or subsequent to its issuance. We find that it did.

The nature of the Act has been defined by this Court in Cipolla v. Cipolla, 264 Pa. Super. 53, 55 n. 1, 398 A.2d 1053, 1054 n. 1 (1979):

The Protection From Abuse Act is a vanguard measure dealing with the problems of wife and child abuse . . . . To institute an action, the plaintiff must file a petition with the court alleging abuse by the defendant. § 10184. If emergency relief is needed, the court may enter a temporary, ex parte order to protect the plaintiff or minor children from abuse. In any event, a hearing must be held within ten days at which time plaintiff must prove the charges. § 10185. (Emphasis added)

[ 353 Pa. Super. Page 74]

It requires no quantum leap in logic to conclude that if the alleged victim is required to demonstrate that abuse has in fact occurred, then a third party, in advancing the same accusations, must, at the very least, bear the same burden.

To meet the special exigencies of abuse cases, acceptable procedures have been fashioned which suspend, temporarily, the due process rights of the alleged abuser and providing for summary procedures for implementation of orders. See Eichenlaub v. Eichenlaub, 340 Pa. Super. 552, 490 A.2d 918 (1985). But continued suspension, irrespective of motivating factors, cannot be countenanced without judicial limits, subject to substantive or procedural restraint. However well intentioned the court may have been in its response to the letter here in question, a review on the record, necessarily ex post facto, to determine the correctness of the Order, should unquestionably have been conducted. The hearing of July 11, 1984, to consider the revocation order, does not fulfill the requirement as no evidence was taken nor testimony elicited, beyond reference to the letter from the Mental Health Center, which was inadmissible. Such a record does not provide an adequate basis for appellate review, proof of the point being that we are provided only with vague innuendoes as to why a restraining order on visitation was issued.

We, therefore, hold that in all cases in which emergency ex parte Orders are issued under the provisions of the Act, a hearing shall be held within ten days of a motion by the parties regardless of whether the Order eventuated from a petition under § 10185(a) or from some other, exigent action. The motions of June 20, 1984, and June 29, 1984 filed by Nancy R./appellant and respondent, Donnie R., respectively, qualified as a petition under § 10185(a). See Commonwealth v. Allen, 506 Pa. 500, 505 n. 5, 486 A.2d 363, 365 n. 5 (1984) (contempt hearing conducted pursuant to § 10185(a)). Such a hearing, of course, must contain all of the elements of due process, which, above all, requires sufficient evidence, which, by its preponderance,

[ 353 Pa. Super. Page 75]

    will support restriction of a member of the family to his or her rights under the law.

Since in this case the parties are not adversarial, and the child advocate, and/or juvenile authorities support issuance of an order, an appropriate evidentiary proceeding with competent witnesses, called if necessary by the court, is required.

We, therefore, reverse and remand for proceedings consistent with this Opinion.

Reversed and remanded. Jurisdiction is ...

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