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[U] Galligher v. Phillips

Superior Court of Pennsylvania

February 21, 2014

TRAVIS GALLIGHER, Appellee,
v.
WILLIAM R. PHILLIPS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered on October 17, 2012 in the Court of Common Pleas of Northumberland County, Civil Division, No. CV-2012-01660.

BEFORE: DONOHUE, SHOGAN and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.:

William R. Phillips ("Phillips") appeals from the Order denying his Exceptions to the Protection from Abuse ("PFA") Order entered in favor of Travis Galligher ("Galligher") and confirming that the September 20, 2012 PFA Order remained in full force and effect.[1] We affirm.

On August 27, 2012, Galligher filed a PFA Petition against Phillips, his former paramour. In the Petition, Galligher alleged that Phillips had been stalking him since Memorial Day weekend 2012, that Phillips had punched Galligher repeatedly in the face and upper body in the spring of 2012, and that Phillips had made threats against Galligher. Galligher's request for a temporary PFA Order was denied.

A hearing on Galligher's PFA Petition was scheduled for September 5, 2012. However, on that date, Phillips failed to appear at the hearing. Galligher testified that he had sent Phillips notice of the hearing and the PFA Petition by certified mail. The trial court continued the hearing until September 19, 2012, to preserve Phillips's right to due process. At the September 19, 2012 hearing, at which Phillips again failed to appear, Galligher testified as to the allegations raised in his Petition. Galligher also presented an Affidavit of Service that established that Phillips had been personally handed a copy of Galligher's PFA Petition and Notice of the September 5, 2012 hearing.

After the hearing, the PFA hearing officer entered a Report and Recommendation, stating that Galligher had met his burden under the PFA. The hearing officer recommended that Phillips have no contact with Galligher and that a PFA order remain in effect for one year. On September 20, 2012, the trial court entered an interim Order adopting the hearing officer's Report and Recommendation, and provided the parties twenty days to file exceptions. Phillips filed timely Exceptions. On October 17, 2012, the trial court denied the Exceptions and stated that the PFA Order entered on September 20, 2012, would remain in full force and effect.

Phillips filed a timely Notice of Appeal. The trial court ordered Phillips to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise statement. Phillips filed a timely Concise Statement and the trial court issued an Opinion.

On appeal, Phillips raises the following questions for our review:

A. Did the trial court err as a matter of law/abuse its discretion by granting the [PFA Petition] filed against [Phillips], as the evidence presented was insufficient to establish a basis for relief under the [PFA] Act[?]
B. Did the [trial] court err as a matter of law/abuse its discretion in failing to hold a hearing within ten (10) days of the filing of the Petition, as required by the [PFA] Act, thereby divesting the trial court of jurisdiction?

Brief for Appellant at 4.

Phillips contends that the evidence presented at the hearing was insufficient to support the entry of the PFA Order. Id. at 9. Phillips argues that Galligher's testimony was incredible, as there was no evidence to corroborate his testimony. Id. at 9-10. Phillips asserts that Galligher's unfounded and unsubstantiated fears could not form the basis of the PFA Order. Id. at 10.

When a claim is presented on appeal that the evidence was not sufficient to support an order of protection from abuse, we review the evidence in the light most favorable to the petitioner, and granting [him] the benefit of all reasonable inferences, determine whether the evidence was sufficient to sustain the trial court's conclusion by a preponderance of the evidence. In these matters, this Court defers to the credibility determinations of the trial court as to witnesses who appeared before it.

Hood-O'Hara v. Wills, 873 A.2d 757, 760 (Pa. Super. 2005) (citation and quotation marks omitted).

Here, the trial court summarized the evidence[2] as follows:

[Galligher] testified that [Phillips] had been stalking him since Memorial Day weekend 2012 and that [Phillips] had punched [Galligher] repeatedly in the face and upper body in the spring of 2012. [Galligher] testified that [Phillips] made threats that, "if you don't stop, I'm gonna knock you one."
[Galligher] testified that he left [Phillips] and subsequently learned that [Phillips] had a history of prior abusive conduct and had prior PFA orders entered against him. [Galligher] contacted the police to have [Phillips] cease following him[;] however, [Phillips] continued to do so. [Galligher] testified that he was in fear that [Phillips] would harm him. The hearing officer found that [Galligher] had testified credibly and consistently with the allegations contained in the [P]etition and had met his burden under the PFA Act in demonstrating that [Phillips] knowingly engaged in a course of conduct or had repeatedly committed acts toward [Galligher] under circumstances which placed [Galligher] in reasonable fear of bodily injury.
The [trial court] reviewed the [hearing officer's] report and recommendation and entered an [O]rder granting a one[-]year order of protection in [Galligher's] favor[.]

Trial Court Opinion, 5/20/13, at 1-2 (unnumbered) (citations and footnote omitted).

Here, Galligher's testimony was found to be credible. Further, contrary to Phillips's claims that the testimony was uncorroborated, Galligher's testimony alone was sufficient to meet the requirements for entry of the PFA Order. See Hood-O'Hara, 873 A.2d at 761 (stating that PFA Act does not require corroborating evidence to sustain the burden of proof, but merely requires that the petitioner show that he/she suffered abuse as defined by the statute); Coda v. Coda, 666 A.2d 741, 743 (Pa. Super. 1995) (holding that wife's testimony alone was sufficient to support the trial court's entry of a PFA order). Thus, when viewing the evidence in the light most favorable to Galligher, as the petitioner, there was sufficient evidence to prove abuse, and the trial court did not err in entering the PFA Order.

In his second claim, Phillips contends that the trial court failed to hold a hearing within ten days of the filing of Galligher's PFA Petition, as required under 23 Pa.C.S.A. § 6107(a) of the PFA Act. Brief for Appellant at 10. Phillips argues that the hearing was not held because Galligher failed to provide Phillips with notice of the hearing. Id. at 11. Phillips asserts that due to the failure to hold a hearing within ten days, the trial court lacked jurisdiction to consider Galligher's Petition. Id.

Section 6107(a) of the PFA Act states the following:

§ 6107. Hearings
(a) General rule.--Within 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. The court shall, at the time the defendant is given notice of the hearing, advise the defendant of the right to be represented by counsel, of the possibility that any firearm, other weapon or ammunition owned and any firearm license possessed may be ordered temporarily relinquished, of the options for relinquishment of a firearm pursuant to this chapter, of the possibility that Federal law may prohibit the possession of firearms, including an explanation of 18 U.S.C. § 922(g)(8) (relating to unlawful acts), and that any protection order granted by a court may be considered in any subsequent proceedings under this title. This notice shall be printed and delivered in a manner which easily attracts attention to its content and shall specify that child custody is one of the proceedings where prior protection orders may be considered.

23 Pa.C.S.A. § 6107(a). "In interpreting Section 6107, this Court has held that the word 'shall' in Section 6107(a) mandates that a final evidentiary hearing must be conducted within ten days." Lanza v. Simconis, 914 A.2d 902, 906 (Pa. Super. 2006).

Here, a hearing was scheduled for September 5, 2012, which was within ten days of Galligher's filing of his PFA Petition. However, Phillips, despite being properly served and notified of the hearing, failed to appear at the hearing. See Trial Court Opinion, 5/20/13, at 1 (unnumbered) (stating that Phillips was personally served a copy of the PFA Petition and the Order specifying the time and place for the September 5, 2012 hearing). The case was subsequently continued to protect Phillips's right to due process. See id. at 2 (unnumbered). Phillips did not appear at the rescheduled hearing. Based upon the evidence of record, Phillips's own failure to appear at the initial hearing caused the delay in the hearing on the PFA Petition. Thus, we cannot conclude that the hearing was held in an untimely manner, and Phillips is not entitled to relief.

Order affirmed.


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