Appeal from the Order entered on July 18, 1986, in the Court of Common Pleas of Northumberland County, Civil Division, at No. CV-86-980.
Carol J. Coyne and Joseph R. DeCristopher, Susquehanna Legal Services, Sunbury, for appellant.
Beck, Hester and Roberts, JJ. Hester, J., concurs in the result.
[ 363 Pa. Super. Page 450]
This is an appeal from an order of the Court of Common Pleas of Northumberland County denying appellant's petition for relief under the Protection From Abuse Act, Pa.Stat.Ann. tit. 35, §§ 10181-10190 (Purdon 1977 & Supp.1986). Finding that relief was improperly denied, we reverse.
Appellant Linda A. Yankoskie seeks court protection from Samuel Marlin Lenker, her former boyfriend. During the early 1980's, appellant and Mr. Lenker shared a residence on Main Street, in Sunbury, Pennsylvania. They cohabited for an extended period of time. In March, 1983, appellant moved to an apartment on Pennsylvania Avenue where she currently resides. This apartment is leased exclusively to the appellant. Mr. Lenker maintains his own separate residence.
In the years which followed, appellant's new home became the focus of Mr. Lenker's family life. The parties had three children together who were raised in the apartment: Samuel Lee Lenker, born September 30, 1983, Sandra Lynn Lenker, born February 14, 1985, and Aaron Marlin Lenker, born May 16, 1986. Mr. Lenker visited appellant and the children with increasing frequency. On the occasion of each visit, he was admitted to the apartment with appellant's consent.
On June 16, 1986, appellant filed a Petition for Protection from Abuse, and a hearing was held within ten days as mandated by the Abuse Act. Pa.Stat.Ann. tit. 35, § 10185(a). Appellant testified that while in the apartment with her permission Mr. Lenker had become intoxicated and had attempted to assault her. She also testified that Mr. Lenker had broken his infant son Aaron's leg and had shoved his young son Samuel's face against a cellar door.
[ 363 Pa. Super. Page 451]
Mr. Lenker did not appear at the hearing or otherwise contest these allegations.
At the conclusion of the hearing, the Honorable James J. Rosini orally denied appellant's petition. Appellant filed posttrial motions as required by Pa.R.Civ.P. 1905(b). These motions were denied. The judge issued a memorandum decision which stated that there was ". . . no doubt in the Court's mind that the acts alleged and testified to constitute sufficient conduct to grant an order if in fact the Abuse Act applies." The court found, however, that it lacked authority under the Abuse Act to grant an order designed to safeguard appellant from Mr. Lenker. We disagree.
Section 10186(a) of the Abuse Act empowers the Court of Common Pleas to:
(1) Directing the defendant to refrain from abusing the plaintiff ...