J-S39013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    M.F.O.                                         IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA

                             Appellee

                        v.

    A.L.O., III

                             Appellant                No. 212 MDA 2018


                  Appeal from the Order entered January 17, 2018
                   In the Court of Common Pleas of Berks County
                           Civil Division at No: 17-16955

BEFORE: STABILE, MURRAY and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                              FILED JULY 16, 2018

         Appellant, A.L.O., III (“Father”), appeals from an order dated January

17, 2018 denying his motion for reconsideration and affirming a Protection

From Abuse1 (“PFA”) order dated September 6, 2017. Father argues that the

trial court abused its discretion by entering the PFA order on September 6,

2017 instead of granting Father’s counsel’s motion for a brief continuance.

We conclude that the trial court abused its discretion under these

circumstances, and we vacate the PFA order and remand for further

proceedings.

         Appellee, M.F.O. (“Mother”) and Father are in the process of divorcing

and are the natural parents of several minor children. On August 30, 2017,

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1   The Protection From Abuse Act is codified at 23 Pa.C.S.A. §§ 6101-6122.
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Mother filed a PFA petition against Father. Mother alleged that there was a

one-year PFA order against Father that was expiring on that date, but that

Father had threatened Mother and their children during the one-year period.

Father, Mother continued, is a former marine and prison guard who suffers

from post-traumatic stress disorder. Mother accused Father of removing the

battery from her car so that she could not escape him and turning off the

water and electricity to their home during the one-year PFA period. She also

alleged that their children were frightened of him.      On August 30, 2017,

Mother wrote, Father stood in front of her home yelling for the parties’ children

as they were exiting a school bus. Mother was not home but was with the

parties’ youngest child at a hospital. The children ran to a neighbor’s house.

Father attempted to break into what was once the marital residence, looking

for the children, and demanded that the parties’ ten-year-old son exit the

residence. Father then tailgated Mother home while flashing his headlights at

her.

       On August 30, 2017, the court held an emergency ex parte hearing in

which Mother testified. The trial court granted Mother a temporary PFA Order

and scheduled a final hearing for September 6, 2017 at 9 a.m.

       One day later, on August 31, 2017, Father’s attorney contacted Mother’s

attorney and requested a continuance, but Mother’s counsel refused to agree.

On the same day, Father’s attorney asserts, he mailed a motion for

continuance to the trial court requesting a continuance because he had a pre-


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planned vacation out of the country from September 4 through September 15,

2017 and could not attend court on September 6, 2017.

      On September 6, 2017, the PFA hearing began at 9:56 a.m. Mother’s

attorney advised the court that Father’s attorney contacted him and requested

a continuance because he was going away for two weeks. Mother’s attorney

stated that he did not agree to a continuance. The court replied that it did

not receive any continuance request and stated: “All right. [Father]? I hear

no response.       No request to the Court for a continuance, and no excuse

otherwise coming to the Court, the Court will enter a final order for a period

of three years.” N.T., 9/6/17, at 3. The court thereupon entered a three-year

final PFA order.

      Just seven minutes after the hearing began, at 10:03 a.m., the

prothonotary time-stamped Father’s motion for continuance. Later that day,

the trial court denied the motion on the ground that it was “received after the

matter was addressed and the order entered.” Order, 9/6/17.

      On September 18, 2017, Father filed a motion for reconsideration. After

several continuances, the trial court held a hearing on January 16, 2018 and

denied Father’s motion. Father filed a timely notice of appeal, and both Father

and the trial court complied with Pa.R.A.P. 1925.

      The trial court stated in its opinion:

      At the final PFA hearing, [Mother’s attorney] stated on the record
      that he had advised Father’s counsel that he opposed the
      continuance. N. T., 9/6/17 at 3. This Court did not even receive
      the Petition for Continuance until after the final hearing had been

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      held and Order entered. In fact, the Petition for Continuance was
      not even filed until after said hearing. As the Court later learned,
      Counsel for Father had mailed the request for continuance to the
      Prothonotary. For Father and his counsel to mail a request for
      continuance by regular first class postage, over a holiday
      weekend, knowing full well that the requested continuance is
      being contested by opposing counsel, and to trust that the request
      would reach the Court on time and be granted, without any follow
      up with the Prothonotary’s office to verify that the Petition had
      even been received, is presumptuous, at the very least.

      We are not aware of any authority which requires a hearing be
      held prior to entering a final PFA Order. Rather, there is only a
      requirement that the parties be given an opportunity for a hearing.
      Entering a Final PFA Order without a hearing upon a [Father]’s
      failure to appear is a procedure accepted and anticipated by our
      Appellate Courts. The statewide PFA database (PFAD) order
      system, developed and approved by the Pennsylvania State
      Supreme Court, includes a worksheet which specifically has an
      option in the choice menu, which option this Court chose in this
      case, to enter a final PFA order at the request of the plaintiff, due
      to [Father]’s failure to appear. That such an option is a matter
      of standard form speaks to the acceptance of such procedure by
      our courts.

      Father and his counsel were less than urgent in filing and pursuing
      the continuance. The argument that this Court did not follow the
      proper procedure is without merit.

Trial Court Opinion, 3/12/18, at 3-4.

      Father raises two issues in this appeal:

      1. Did the trial court err in granting the [PFA] [o]rder without
      holding the mandatory evidentiary hearing to determine the
      merits of [Mother’s] [p]etition?

      2. Did the trial court err in granting the [PFA] Order with evidence
      presented to the [c]ourt that was not sufficient to justify the entry
      of a [f]inal [PFA] [o]rder in this matter?

Father’s Brief at 3.




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      Father first argues that the trial court erred by denying his attorney’s

motion for continuance. We agree.

      The PFA Act provides in relevant part:

      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 . . .

23 Pa.C.S.A. § 6107(a). Trial courts have discretion to continue evidentiary

hearings regarding final PFA orders and enter appropriate temporary ex parte

orders to cover the intervening time. 23 Pa.C.S.A. § 6107(c) (“[i]f 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”).

      To determine whether a trial court abuses its discretion by denying a

request for a continuance, we consider “whether there is prejudice to the

opposing party by a delay, whether opposing counsel was willing to continue

the case, the length of the delay requested, and the complexities involved in

presenting the case.” Papalia v. Montour Auto. Serv. Co., 682 A.2d 343,

345 (Pa. Super. 1996). “An abuse of discretion exists where the trial court’s

determination overrides or misapplies the law, its judgment is manifestly

unreasonable, or the result or partiality, prejudice, bias or ill-will.” Majczyk

v. Oesch, 789 A.2d 717, 720 (Pa. Super. 2001).




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       Given the serious allegations of abuse in Mother’s petition, we can

understand why the trial court found it important to hold a final PFA hearing

expeditiously. We conclude, however, that the trial court placed too great a

premium on speed and too little on Father’s rights.

       The record establishes that Mother obtained an order on August 30,

2017 granting temporary PFA protection and scheduling a final PFA hearing

for September 6, 2017.         Father obtained counsel, who contacted Mother’s

counsel on August 31, 2017 to request a continuance, but Mother’s counsel

declined the request.2 Father’s counsel promptly mailed a motion seeking a

continuance from September 6, 2017 until after Friday, September 15, 2017

due to counsel’s pre-planned vacation out of the country. As fate would have


____________________________________________


2 We note that Mother’s counsel refused to agree with Father’s counsel’s
request for a continuance despite Father’s counsel’s pre-paid vacation. We
see no support in the record for refusing this request. It is no excuse for
Mother’s counsel to say that agreeing to a continuance would have exposed
Mother to physical harm. Mother already was under the protection of a
temporary PFA order at the time of the request. She would have remained
protected under the order throughout a continuance. We are concerned with
Mother’s counsel’s lack of courtesy towards Father’s counsel. The
Pennsylvania Supreme Court in 2000 adopted The Code of Civility whose
Preamble provides in part:

       The conduct of lawyers and judges should be characterized at all
       times by professional integrity and personal courtesy in the
       fullest sense of the terms . . . Uncivil or obstructive conduct
       impedes the fundamental goal of resolving disputes in a rational,
       peaceful and efficient manner.

[Emphasis added]. We would encourage counsel and all practitioners to take
to heart what is required by this Code.


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it, the motion did not arrive at the prothonotary’s office until 10:03 a.m. on

September 6th, only seven minutes after the PFA hearing commenced.

Several hours later, the court denied the motion as untimely. Under these

circumstances, Father was entitled to a continuance. To begin with, counsel’s

petition articulated a reasonable basis for a brief continuance: he had a pre-

arranged vacation in a distant destination. Further, counsel requested this

continuance in a prompt and diligent fashion. Although his motion did not

arrive until minutes after the hearing began, he mailed the motion to the court

fully one week earlier. The court thus erred by ruling that counsel was “less

than urgent in filing and pursuing the continuance.” Trial Ct. Op. at 4.

      Finally, it is critical to remember that the PFA Act entitled Father to an

evidentiary hearing on Mother’s PFA petition in which Father has the right to

counsel and Mother must prove her allegations by a preponderance of the

evidence. 23 Pa.C.S.A. § 6107(a). By denying Father a continuance, the trial

court effectively deprived him of his right to counsel at the PFA hearing. The

prejudice to Father through deprivation of counsel outweighed any harm that

Mother would have incurred from a brief continuance until after September

15th. Instead of denying the continuance and proceeding to final disposition,

the court should have extended the temporary PFA order entered on August

30, 2017 to the date of the rescheduled evidentiary hearing. This would have

safeguarded Mother’s rights until the new hearing date without sacrificing

Father’s statutory rights under the PFA.


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      Balancing the factors articulated in Papalia, we conclude that the trial

court abused its discretion by denying a continuance. The brief continuance

requested by Father’s counsel would have caused minimal inconvenience to

Mother. On the other hand, the denial of this continuance caused substantial

prejudice to Father: he had no opportunity to contest Mother’s evidence at a

formal evidentiary hearing while represented by counsel.      Father’s counsel

mailed his motion for continuance well in advance of the hearing and cannot

be responsible for any unforeseen delay in the delivery of the motion to the

prothonotary or from the prothonotary to the court, if that in fact was what

occurred. While we recognize that the allegations in Mother’s PFA petition are

serious and disturbing, we cannot condone the peremptory manner in which

the court entered a final PFA order against Father. We vacate the final PFA

order and remand for an evidentiary hearing on Mother’s PFA petition.

      In view of our disposition of this issue, we need not address Father’s

second argument that the evidence was insufficient to sustain a final PFA order

against him.

      Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/16/2018

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