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Donna L. Ferko-Fox v. Jonathan P. Fox

April 17, 2013


Appeal from the Order Entered November 21, 2011 In the Court of Common Pleas of Lancaster County Civil Division at No(s): CI-11-02825

Per curiam.



Jonathan P. Fox ("Husband") appeals the order granting a final protection from abuse ("PFA") order in favor of Donna L. Ferko-Fox ("Wife"). We affirm.

The trial court succinctly summarized the factual and procedural history as follows:

The Plaintiff (hereinafter, "Wife") filed a Petition for Protection from Abuse and was granted a Temporary Protection From Abuse Order on March 22, 2011, which evicted the Defendant (hereinafter, "Husband") from the marital home, prohibited Husband from abusing Wife, prohibited contact with Wife and prohibited Husband from stalking or harassing Wife's mother. The parties appeared before the Court on the first hearing date scheduled[,] March 28, 2011. Wife requested a continuance in order to obtain counsel. Husband requested the opportunity to obtain certain tangible personal property from the parties' residence[,] from which he had been evicted per the Temporary Protection Order. Accordingly, the Continuance Order also contained a provision which directed Husband to employ a Constable to remove his specified tangible personal property from Wife's residence. A hearing was commenced on May 9, 2011, which was not completed due to insufficient time. The Temporary Protection Order remained in effect pending the continued hearing date. Husband filed a Petition for Access to the Premises to Remove Property, to Obtain Photographs, to Reschedule Hearing and to Obtain Medical Records, which was presented in family business court on June 6, 2011. The Petition was denied, excepting that Husband was directed to employ a moving company to remove his personal property from Wife's residence. The prior Order authorizing Husband to remove his tangible personal property did not achieve its purpose because the constable hired by Husband declined to physically remove the property. The hearing on Wife's Petition For Protection From Abuse was concluded on September 28, 2011, and resulted in the grant of a Final Protection from Abuse Order on November 23, 2011. The Final Protection from Abuse Order is effective for one year and siX months from the date it was issued.

Trial Court Opinion, 2/14/12, at 1-2 (some internal parentheses omitted). Husband appealed from the final PFA order and raises the following issues for our review:

[1.] There was no Ex-parte Proceeding as required by 23 Pa.C.S. §6107([b]) and no immediate and present danger requiring Ex Parte Relief to be granted before the March 28, 2012 Hearing nor continued beyond the March 28, 2011 Court appearance;

[2.] Over the Objection of Defendant, the Court erred in not having a hearing before the Court within the ten business day timeframe where "the plaintiff must prove the allegation of abuse by a preponderance of the evidence" as required by 23 Pa.C.S. §6107 (a);

3. The evidence presented was not sufficient to support the entry of an order of Protection From Abuse; AND The Trial Court's Findings are unreasonable and represent a gross abuse of discretion.

4. The trial court committed a clear abuse of discretion in not permitting Plaintiff to testify about her relatives who came to the court hearing on May 9, 2011.

Husband's brief at 4. We address the issues seriatim.*fn2

We review the propriety of a PFA order for an abuse of discretion or an error of law. Commonwealth v. Walsh, 36 A.3d 613, 917 (Pa.Super. 2012). First, Husband challenges the propriety of the temporary PFA order that the trial court entered on March 22, 2011. Husband contends that § 6107(b) of the Protection from Abuse Act mandates that a trial court conduct an ex parte hearing before issuing a temporary PFA and that "a simple review of a verified petition" is inappropriate. Husband's brief at 20. In essence, Husband opines that the allegations leveled in a verified PFA petition are insufficient to sustain a finding of an immediate and present danger of abuse until a trial court tests the veracity of the assertions during an ex parte proceeding. Id. at 22. For the following reasons, we agree.

At the outset, we observe that this issue relating to the propriety of the temporary PFA is moot because the trial court entered a final PFA on November 21, 2011. Nevertheless, we find that this case falls within a recognized exception to the mootness doctrine.

In Warmkessel v. Heffner, 17 A.3d 408, 413 (Pa.Super. 2011) (quoting In re D.A., 801 A.2d 614, 616 (Pa.Super. 2002) (en banc)), we delineated the relevant exceptions to mootness: "This Court will decide questions that otherwise have been rendered moot when one or more of the following exceptions to the mootness doctrine apply: 1) the case involves a question of great public importance, 2) the question presented is capable of repetition and apt to elude appellate review, or 3) a party to the controversy will suffer some detriment due to the decision of the trial court." The case at bar implicates the second exception, i.e., due to the evanescent nature of temporary PFA orders, questions relating to the adequacy of ex parte proceedings are capable of repetition and apt to elude appellate review. Indeed, this Court has employed exceptions to the mootness doctrine to review issues stemming from expired PFA orders. Shandra v. Williams, 819 A.2d 87, 90 (Pa.Super. 2003) (quoting Snyder v. Snyder, 629 A.2d 977, 980 n.1 (Pa.Super. 1993)) ("Protection From Abuse Act Orders are usually temporary, and it is seldom that we have the opportunity to review one before it expires."). Accordingly, it is proper for this Court to confront the pertinent issue that Husband asserts in this appeal, even though our ruling has no legal force or effect upon the order that granted Wife's temporary PFA order.

Turning to the merits of Husband's specific position regarding the interpretation of 23 Pa.C.S. § 6107, we note that the applicable standard of review is de novo and our scope of review is plenary. Scott v. Shay, 928 A.2d 312, 314 (Pa.Super. 2007). In Scott, we outlined the parameters of statutory construction as follows:

When we undertake statutory interpretation, our object is to ascertain and then effectuate the intention of the Legislature. 1 Pa.C.S.A. § 1921(a). When possible, this Court construes every statute so as to give effect to all of its provisions. Id. If the terms of a statute are clear and free of all ambiguity, we will not disregard the letter of the law in favor of pursuing its apparent spirit. Id. at (b). However, when the words of a statute are not explicit, this Court must determine what it was that the General Assembly intended. Id. at (c). We then apply the legislators' intent when interpreting the law in question. See id. at (a), (b), (c).

When determining legislative intent, there are a number of factors that may be helpful. See 1 Pa.C.S.A. ยง 1921(c) (listing factors to consider). Among these are the occasion, necessity and circumstances of the enactment of the statute, the mischief to be remedied and the object to be attained thereby. McCance, 908 A.2d at 908, 909. Also important are the consequences of our interpretation. Id. More ...

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