J-S69006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID RICHARDSON                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

CATHERINE RICHARDSON

                         Appellant                    No. 3477 EDA 2014


             Appeal from the Order Entered November 14, 2014
            In the Court of Common Pleas of Montgomery County
                     Civil Division at No(s): 2014-29238


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED DECEMBER 16, 2015

      Appellant, Catherine Richardson, appeals from the order entered in the

Montgomery County Court of Common Pleas, granting final Protection from

Abuse (“PFA”) in favor of Appellee, David Richardson.         For the following

reasons, we vacate the final PFA order, direct reinstatement of the

temporary PFA order, and remand for further proceedings.

      In its opinion, the trial court set forth the relevant facts and procedural

history of this case as follows:

         On October 30, 2014, Appellee filed a [PFA petition]
         against Appellant on behalf of himself. In said petition
         Appellee avers that on October 28, 2014, Appellant
         repeatedly called his cell phone and office, and eventually
         got him on the phone to tell him…“she was coming to [his]
         home and someone was going to beat [him] up and get
         inside of [his] home. On the same date, the Honorable
         Patricia E. Coonahan, issued a temporary PFA Order, which
         directed that Appellant “shall not abuse, harass, stalk, or
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           threaten,” or have any contact with Appellee. In addition,
           a Notice of Hearing was issued scheduling a hearing on the
           PFA petition for November 6, 2014, before the
           undersigned.

           On October 31, 2014, Appellant was personally served with
           a copy of the PFA petition, the temporary PFA Order, and
           the Notice of Hearing that indicated a hearing would be
           held on November 6, 2014.

           On November 6, 2014, Appellee appeared for the hearing,
           but Appellant failed to appear.       After verifying that
           Appellant had not requested any continuance, and had
           received proper service of the Notice of Hearing, this
           [c]ourt conducted a hearing in Appellant’s absence.

           At the conclusion of the hearing, this [c]ourt issued a final
           PFA Order (“Final PFA”) on behalf of Appellee which directs
           that Appellant, for a period of one (1) year, shall not
           contact Appellee, his wife, or his stepdaughter, and further
           directs that Appellant “shall not abuse, stalk, harass,
           threaten or attempt to use physical force that would
           reasonably be expected to cause bodily injury to Appellee.
           The Final PFA also directs Appellant to undergo alcohol
           rehabilitation.

           On December 2, 2014, Appellant filed an Emergency
           Motion for Reconsideration of the November 6, 2014 Final
           PFA Order. In said Motion, Appellant averred that she had
           every intention to appear on November 6, 2014, to defend
           against the PFA petition, but was unable to attend because
           she was involuntarily committed to the Montgomery
           County Services Building 50 (“Building 50”) pursuant to
           section 302 of the Mental Health Procedures Act of 1976.[1]
           Appellant sought to vacate the Final PFA Order, reinstate
           the temporary PFA Order, and reschedule the hearing so
           that she could present a defense to the PFA petition. In an
           abundance of caution to preserve her appeal rights, on
           December 5, 2014, Appellant also filed a Notice of Appeal
           from the November 6, 2014 Final PFA Order.
____________________________________________


1
    50 P.S. § 7302.



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         On December 17, 2014, this [c]ourt issued an Order,
         which purportedly granted Appellant’s Emergency Motion
         for Reconsideration, vacated the November 6, 2014 Final
         PFA, reinstated the October 30, 2014 temporary PFA, and
         scheduled a new hearing date for January 6, 2015.

         However, on January 9, 2015, the Superior Court of
         Pennsylvania, issued a Per Curiam Order, which informed
         this [c]ourt that because this [c]ourt did not grant
         Appellant’s Motion for Reconsideration until December 17,
         2014, which was two days after the thirty day window for
         reconsideration, this [c]ourt was without jurisdiction to
         enter the December 17, 2014 Order. Accordingly, the
         Final PFA Order was properly before the Superior Court on
         appeal.

         On January 21, 2015, Appellant filed a Response to the
         Superior Court’s January 9, 2015 Order and an Application
         for Remand.      In said Response/Application, Appellant
         requests that the matter be remanded back to this [c]ourt
         so that a hearing can be held, as outlined in the December
         17, 2014 Order.

(Trial Court Opinion, filed April 10, 2015, at 1-3) (internal footnotes

omitted).

      Appellant raises the following issue on appeal:

         WAS APPELLANT DENIED PROCEDURAL DUE PROCESS
         WHEN TRIAL WAS CONDUCTED IN HER ABSENCE WHILE
         SHE REMAINED INVOLUNTARILY CIVILLY COMMITTED
         PURSUANT TO SECTION 302 OF THE MENTAL HEALTH
         PROCEDURE[S] ACT OF 1976[,] 50 P.S. § 7302[?]

(Appellant’s Brief at 4).

      Appellant argues she was denied due process when the Court of

Common Pleas of Montgomery County proceeded with trial in her absence.

Specifically, Appellant contends that on the date Appellee’s PFA petition was


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heard, Appellant was rendered unavailable due to her involuntary civil

commitment, pursuant to Section 302 of the Mental Health Procedure Act of

1976.      Because Appellant was literally rendered unavailable for trial,

Appellant concludes we should remand for further proceedings. We agree.

        When an appellant files a motion for reconsideration of a final order,

she must file the notice of appeal simultaneously to assure the availability of

appellate review should the trial court deny the petition or fail to grant it

“expressly” within the 30-day appeal period. See Sass v. AmTrust Bank,

74 A.3d 1054, 1062 (Pa.Super. 2013), appeal denied, 624 Pa. 675, 85 A.3d

484 (2014) (citing Cheathem v. Temple University Hosp., 743 A.2d 518,

521 (Pa.Super. 1999)).      In other words, the mere filing of a motion for

reconsideration does not toll the 30-day appeal period:

          The Rules of Appellate Procedure recognize a single
          method to toll the appeal period which counsel throughout
          this Commonwealth have consummated through decades
          of practice: “[T]he 30-day period may only be tolled if
          that court enters an order ‘expressly granting’
          reconsideration within 30 days of the final order.” “There
          is no exception to this Rule, which identifies the only form
          of stay allowed. A customary order and rule to show cause
          fixing a briefing schedule and/or hearing date, or any other
          order except for one “expressly granting” reconsideration,
          is inadequate.”         Consequently, a party seeking
          reconsideration     must    file  the     notice  of  appeal
          simultaneously to assure the availability of appellate
          review should the trial court deny the petition or fail to
          grant it “expressly” within that critical 30–day window.

Sass, supra (internal citations omitted).      See also Commonwealth v.

Moir, 766 A.2d 1253, 1254 (Pa.Super. 2000) (holding court must expressly


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grant reconsideration within 30-day appeal period; court’s order to show

cause and setting hearing date does not expressly grant reconsideration;

filing protective notice of appeal is necessary to preserve appellate rights).

      For a PFA hearing to comport with due process, the parties must, at a

minimum, have the opportunity to present witnesses on their own behalf,

testify on their own behalf, and cross-examine the opposing party and

his/her witnesses. Leshko v. Leshko, 833 A.2d 790 (Pa.Super. 2003).

      Instantly, the trial court reasoned:

         “The purpose of the PFA Act is to protect victims of
         domestic violence from those who perpetrate such abuse,
         with the primary goal of advance prevention of physical
         and sexual abuse.” Buchhalter v. Buchhalter, 959 A.2d
         1260, 1262 (Pa.Super. 2008).        In PFA hearings, a
         defendant has been afforded due process “where Appellant
         was entitled to present witnesses in his own defense and
         to cross-examine witnesses including Appellee” despite
         being unrepresented by counsel. [Leshko supra at 791.]

         In the present matter, although the [c]ourt finds the
         issuance of the Final PFA was proper and in accordance
         with 23 Pa.C.S. § 6107(a), this [c]ourt was willing to
         vacate the Final PFA, and reinstate the temporary PFA to
         afford Appellant the opportunity to defend against the PFA
         petition while still providing Appellee with protection in the
         interim. Because Appellee’s interests are still protected by
         the temporary PFA, this [c]ourt does not find that Appellee
         would be prejudiced if Appellant were granted to the
         opportunity to present a defense to the PFA petition.
         Accordingly, [the court] respectfully submits that this
         matter should be remanded so this [c]ourt can conduct a
         new hearing….

(Trial Court Opinion at 3-4).      We accept the court’s recommendation;

Appellant can have her day in court while Appellee remains protected under


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the temporary PFA order     Thus, we vacate the final PFA order, direct

reinstatement of the temporary PFA order, and remand for further

proceedings.

     Order vacated, case remanded. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2015




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