J-A04004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    K.F.-M.                                          IN THE SUPERIOR COURT
                                                        OF PENNSYLVANIA

                              Appellee

                         v.

    J.M.

                              Appellant                 No. 1105 MDA 2017


                         Appeal from the Order June 15, 2017
                  In the Court of Common Pleas of Lancaster County
                           Civil Division at No: CI-17-04783

BEFORE: STABILE, NICHOLS, AND RANSOM,* JJ.

MEMORANDUM BY STABILE, J.:                                FILED JUNE 19, 2018

           Appellant, J.M.,1 appeals from an order under the Protection From Abuse

Act, 23 Pa.C.S.A. §§ 6101-6122 (“PFA Act”) prohibiting Appellant from having

any contact with his estranged wife’s minor daughter, K.M., until November

17, 2017. We affirm.

           The record reflects that on May 17, 2017, Appellee, K.F-M., filed a PFA

petition against her estranged husband, Appellant, on behalf of her minor

daughter, K.M. Following an ex parte hearing in which K.M. testified, the trial

court granted a temporary PFA order for K.M. and scheduled a final PFA

hearing for May 24, 2017.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1 Because this case involves a minor, we have replaced the parties’ full names
either with their initials or with terms such as “Appellant” and “Appellee”
throughout this memorandum.
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       On May 24, 2017, both Appellant and Appellee appeared with counsel,

but the parties agreed to continue the case to May 30, 2017. On May 30,

2017, both parties again appeared with counsel, and Appellee requested a

continuance because of the unavailability of two material witnesses.         Over

Appellant’s objection, the trial court continued the hearing until June 6, 2017.

       The trial court held hearings on June 6, 2017 and June 13, 2017.

Appellee presented evidence that Appellant exposed his genitals to K.M. and

had her rub lotion on his back while he was nude. On June 13, 2017, the

court issued a final PFA order against Appellant that prohibited him from

having contact with K.M. until after November 17, 2017.2 Appellant filed a

timely notice of appeal from this order, and both Appellant and the trial court

complied with Pa.R.A.P. 1925.

       Appellant raises two issues in this appeal:

       1. Did the trial court violate [Appellant’s] due process rights and
       disregard the clear and unambiguous language of the [PFA] Act
       when it granted [Appellee] a continuance which caused the
       hearing to be held more than 10 business days after the petition
       was filed?

       2. Did the trial commit an error of law by entering a final [PFA]
       [o]rder when [Appellee] failed to prove facts which meet the
       definition of abuse as set forth in the [PFA] Act?



____________________________________________


2Notably, this was not the first PFA order against Appellant. On November 3,
2016, the trial court, through the same judge, entered a PFA order against
Appellant due to sexual misconduct against K.M.’s older sister, L.M. This Court
affirmed that order on July 27, 2017. See K.F.-M. v. J.W.M., No. 1955 MDA
2016 (Pa. Super., Jul. 27, 2017) (unpublished memorandum).

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Appellant’s Brief at 7.

      We begin with a brief overview of the PFA Act. The PFA Act sets forth

procedures by which a party may seek protection from violence, sexual abuse,

or other abuse.      The proceedings begin when a plaintiff files a petition

pursuant to 23 Pa.C.S.A § 6106.       If the petition “alleges immediate and

present danger of abuse to the plaintiff or minor children, the court shall

conduct an ex parte proceeding.” 23 Pa.C.S.A. § 6107(b)(i). The court may

also enter a temporary PFA order for the protection of those in immediate and

present danger. 23 Pa.C.S.A. § 6107(b)(ii). The court must then hold an

evidentiary hearing at which the plaintiff bears the burden of proving the

allegation of abuse by a preponderance of the evidence.        23 Pa.C.S.A. §

6107(a). The defendant must be given notice of the hearing and must be

notified of his or her right to be represented by counsel. Id. Following the

hearing, the court may deny relief and dismiss the petition or grant relief by

issuing a final PFA order. 23 Pa.C.S.A. § 6108.

      Before addressing Appellant’s arguments, we examine whether this

appeal is moot due to expiration of the final PFA order on November 17, 2017.

It is well-settled that

      [t]his 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 . . . Indeed, this Court has employed exceptions to the
      mootness doctrine to review issues stemming from expired PFA

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      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.”).

Ferko-Fox v. Fox, 68 A.3d. 917, 920-21 (Pa. Super. 2013) (citation and

quotation marks omitted). Based on this reasoning, we conclude that this

case falls within an exception to the mootness doctrine, and we will address

the questions raised in Appellant’s brief.

      Appellant first argues that the trial court violated the PFA Act by

continuing his evidentiary hearing for more than ten business days after the

filing of the PFA petition. According to Appellant, the PFA Act required the trial

court to hold his PFA hearing within ten business days after the filing of the

PFA petition, or by June 1, 2017, and the failure to hold his hearing within this

time period entitles him to reversal of the PFA order. We disagree.

      The PFA Act provides: “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.” 23 Pa.C.S.A. § 6107(a). Section 6107(b) continues:

      (1) If a plaintiff petitions for temporary order for protection from
      abuse and alleges immediate and present danger of abuse to the
      plaintiff or minor children, the court shall conduct an ex parte
      proceeding.

      (2) The court may enter such a temporary order as it deems
      necessary to protect the plaintiff or minor children when it finds
      they are in immediate and present danger of abuse. The order
      shall remain in effect until modified or terminated by the court
      after notice and hearing.

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23 Pa.C.S.A. § 6107(b). Finally, Section 6107(c) provides: “If a hearing under

subsection (a) is continued and no temporary order is issued, the court may

make ex parte temporary orders under subsection (b) as it deems necessary.”

      Appellant posits that the term “shall” in Section 6107(a) makes the ten-

day rule a hard and fast requirement. This argument fails due to our decision

in Ferko-Fox that trial courts have the discretion to continue PFA hearings

more than ten business days after the filing of PFA petitions:

      Pursuant to § 6107(c), trial courts have discretion to continue
      evidentiary hearings regarding final PFA orders and enter
      appropriate temporary ex parte orders to cover the intervening
      time. See 23 Pa.C.S. § 6107(c) (“If a hearing under subsection
      (a) [relating to evidentiary hearing on final PFA order] is continued
      and no temporary order is issued, the court may make ex parte
      temporary orders under subsection (b) as it deems necessary.”).
      Keying on the conjunction “and” in the proviso, [the appellant]
      asserts that subsection (c) is inapplicable in the instant case . . .
      [The appellant] posits that the provision does not apply where, as
      here, a trial court issued the temporary ex parte order pursuant
      to § 6107(b) before continuing the evidentiary hearing . . . We
      reject [the appellant’s] premise that the trial court’s ability to
      grant a continuance is dependent upon the absence of a previously
      entered ex parte order. In actuality, it is clear to this Court that
      the provision simply accords trial courts the authority to enter ex
      parte orders, if needed, in order to protect a petitioner from abuse
      pending the continuation of the evidentiary hearing. Accordingly,
      [the appellant’s] contrary interpretation of the trial court’s
      statutory authority to continue the evidentiary hearing is
      unpersuasive.

Ferko-Fox, 68 A.3d at 926.

      Although     Appellant    assails   Ferko-Fox      as    “poor    statutory

interpretation,” Appellant’s Brief at 18, this does not help his cause. As a prior

published opinion, Ferko-Fox is binding upon this panel. Commonwealth

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v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013) (“[a] panel [of this Court] is not

empowered to overrule another panel of the Superior Court”). In any event,

we find Ferko-Fox logical.     It is implicit from the first phrase in Section

6107(c), “if a hearing under subsection (a) is continued,” that the ten-day rule

in Section 6107(a) is not rigid and inflexible but allows for continuances made

necessary by (among other things) congested dockets and the parties’ needs.

      We turn to whether the trial court’s decision to grant a continuance in

this case was a proper exercise of discretion. Ferko-Fox, 68 A.3d at 925

(“[t]his Court reviews a trial court’s decision to grant or deny a continuance

for an abuse of discretion”). Appellant does not contest the first continuance

from May 24, 2017 to May 30, 2017, but he objects to the continuances from

May 30, 2017 to June 6, 2017 and from June 6, 2017 to June 13, 2017. On

May 30, Appellee’s counsel requested a continuance because two material

witnesses whom she had subpoenaed for the hearing were unavailable, one

because of illness and one because of a previously scheduled vacation which

counsel was not aware of when she agreed to the May 30 hearing date. Both

witnesses were crucial to the case because they were involved in the

investigation of sexual abuse claims against Appellant by Lancaster County

Children and Youth. Under these circumstances, the trial court acted within

its discretion by granting a brief continuance to June 6.    Furthermore, the

continuance from June 6 to June 13 was necessary because there was




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insufficient time to complete the hearing on June 6.         For these reasons,

Appellant’s first argument does not entitle him to relief.

      In his second argument, Appellant asserts that the evidence was

insufficient to sustain the trial court’s determination that he abused K.M. We

disagree.

      When a party argues on appeal that the evidence was not sufficient to

support a PFA order, we review in the evidence in light most favorable to the

petitioner, and granting her the benefit of all reasonable inferences, we

determine whether the evidence was sufficient to sustain trial court's

conclusion by a preponderance of evidence.       Hood-O'Hara v. Wills, 873

A.2d 757, 760 (Pa. Super. 2005).

      A series of definitions will place Appellant’s acts in proper perspective.

The PFA Act defines “abuse” as:

      The occurrence of one or more of the following acts between
      family or household members, sexual or intimate partners or
      persons who share biological parenthood:

      (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. §
      2903 (relating to false imprisonment).




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      (4) Physically or sexually abusing minor children, including
      such terms as defined in Chapter 63 (relating to child
      protective services).

      (5) Knowingly engaging in a course of conduct or repeatedly
      committing acts toward another person, including following the
      person, without proper authority, under circumstances which
      place the person in reasonable fear of bodily injury. The definition
      of this paragraph applies only to proceedings commenced under
      this title and is inapplicable to any criminal prosecutions
      commenced under Title 18 (relating to crimes and offenses).

23 Pa.C.S.A. § 6102 (emphasis added).         Chapter 63, the Child Protective

Services Law, defines “sexual abuse” to include, inter alia, “[i]ndecent

exposure as defined in 18 Pa.C.S.[A.] § 3127 . . .” 23 Pa.C.S.A. 6303(a)

(subsection (2)(viii) of definition of “sexual abuse or exploitation”).

      Section 3127 of the Crimes Code defines “indecent exposure” as

“expos[ing]” one’s genitals “in any place where there are present other

persons under circumstances in which he . . . knows or should know that this

conduct is likely to offend, affront or alarm.” 18 Pa.C.S.A. § 3127(a). One

acts knowingly with respect to a material element of an offense when, “if the

element involves a result of his conduct, he is aware that it is practically

certain that his conduct will cause such a result.” 18 Pa.C.S.A. § 302(b)(2).

      In this case, the trial court observed the following:

      [Appellant] contends that he did not intentionally expose his
      genitals to K.M. Despite this contention, under the totality of the
      circumstances it is reasonable to infer that [Appellant]’s intention
      was clear and purposeful. He invited a female child of twelve
      years of age into his bedroom while he was totally disrobed; his
      full body, including his genitals, was plainly visible to K.M. He
      instructed K.M. to rub lotion on his back. K.M. testified that she
      did, indeed, see [Appellant]’s genitals. There was no indication

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       that the exposure was accidental, as might have been the case if
       [Appellant] had wrapped a towel around himself and the towel
       then slipped. K.M. was present in [Appellant]’s bedroom at his
       invitation and at his direction. It was not customary in this family
       for either of the parents to be naked in the presence of their
       children. [Appellant] surely knew that his conduct was likely to
       offend, affront or alarm K.M. The Court, having heard the
       testimony of K.M.’s sister, L.M., in the L.M. [c]ase, discerns that
       there is a pattern of behavior on the part of [Appellant] which is
       disturbingly sexual in nature and intent.        In these several
       instances, [Appellant] acted with the knowledge, intent and
       motive to expose himself . . . .

       While there was just one incident involving abuse by [Appellant]
       where K.M. was the victim, the disturbing pattern established with
       K.M.’s older sister in the L.M. case suggests that [Appellant] was
       involved in grooming his daughters for further sexual misconduct
       and abuse.

Trial Court Opinion, 9/8/17, at 15-16, 17-18.

       The trial court’s opinion accurately recounts the evidence of record.

Construed in the light most favorable to Appellee, the evidence demonstrates

that Appellant committed the act of indecent exposure against K.M.            This

evidence was sufficient to sustain the trial court’s determination of abuse by

a preponderance of the evidence.3

       Order affirmed.




____________________________________________


3 The trial court also determined that Appellant committed an act of indecent
assault against K.M. We need not analyze whether Appellant committed this
act, because his commission of indecent exposure is sufficient to sustain the
trial court’s determination of abuse.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/19/2018




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