J-A07003-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    A.V.W.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                V.                             :
                                               :
                                               :
    K.R.D.                                     :
                                               :
                       Appellant               :   No. 877 MDA 2019

                  Appeal from the Order Entered April 29, 2019
     In the Court of Common Pleas of Centre County Civil Division at No(s):
                                  2018-0807


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                                 FILED APRIL 23, 2020

        Appellant, K.R.D., appeals from the order entered on April 29, 2019

denying his petition for the expungement of a temporary order entered against

him pursuant to the Protection From Abuse (PFA) Act.1                 After careful

consideration, we vacate and reverse.

        The trial court briefly summarized the facts and procedural history of

this case as follows:

        On February 26, 2018, [A.V.W.] filed a petition for [a PFA] under
        the Protection from Abuse Act (PFAA) codified at 23 Pa.C.S.A.
        §§ 6101-6122. In her PFA[, A.V.W.] alleged one incident of
        threatened sexual assault and one incident of actual sexual
        assault perpetrated by [Appellant]. A temporary PFA [o]rder was
        entered February 26, 2018. The temporary PFA was continued on
        March 12, 2018 at [A.V.W.’s] request. The temporary PFA was
        again continued on April 26, 2018. [A.V.W.] filed a motion to
        withdraw the PFA and [the trial court] dismissed the PFA without
        prejudice on June 22, 2018. On October 2, 2018[, Appellant] filed
____________________________________________


1   23 Pa.C.S.A. §§ 6101-6122.
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       a [p]etition for [e]xpungement of [the PFA]. On November 27,
       2018, a [r]ule was entered against [A.V.W.] to show cause why
       [Appellant’s] petition should not be granted. A hearing on
       [Appellant’s] motion was held on December 28, 2018. [The trial
       court] entered an [o]rder denying [Appellant’s] petition [to
       expunge the PFA] on April 29, 2019.

Trial Court Opinion, 7/15/2019, at 1-2.

       The trial court determined that Appellant “did not have an absolute right

to expungement of his record, and [] needed to show a particularized harm

before he would have a right to expungement.” Id. at 2. More specifically, it

concluded:

       Here, the record reflects an alleged abusive relationship between
       [A.V.W.] and [Appellant].          [A.V.W.] alleged [Appellant]
       threatened to sexually assault her, and alleged [Appellant] raped
       her in 2017. Further, [A.V.W.] alleged [Appellant] has slapped
       her and choked her on previous occasions. Due to the severity of
       the alleged abuse, the [trial c]ourt, in its discretion, determined
       [Appellant’s] PFA record should not be expunged.

Id. This timely appeal resulted.2

       On appeal, Appellant presents the following issue for our review:

       I.     Whether the trial court erred as a matter of law and also
              abused its discretion in denying Appellant[’s] petition for
              expungement of [the PFA] where the temporary PFA order
              at issue was dismissed by the trial court, the PFA
              proceedings never evolved beyond the temporary order
              stage, and where there had never been a finding or
              admission of physical or any other type of abuse on the part
              of Appellant[?]

Appellant’s Brief at 5.
____________________________________________


2 Appellant filed a notice of appeal on May 28, 2019. He filed a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
on June 11, 2019. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on July 15, 2019.

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      Appellant claims that the trial court erred as a matter of law by failing

to expunge the PFA at issue. More specifically, Appellant asserts that the trial

court erred by relying upon the “severity of the alleged abuse” as set forth in

the PFA petition to deny Appellant expungement relief.      Id. at 8. He claims

that since the PFA court did not issue a permanent PFA order against him or

otherwise make any findings of fact in this matter, the record only contains

bald allegations of purported acts of alleged abuse. Id. at 11-13. Accordingly,

Appellant maintains he is entitled to expungement as a matter of law pursuant

to our Supreme Court's decision in Carlacci v. Mazaleski, 798 A.2d 186 (Pa.

2002), and this Court's rationale in Commonwealth v. Charnik, 921 A.2d

1214 (Pa. Super. 2007) and Graham v. Flippen, 179 A.3d 85, 87 (Pa. Super.

2018). See Appellant’s Brief at 11-13.

      We review the trial court’s decision for an abuse of discretion or error of

law. See Graham, 179 A.3d at 88. The Graham Court summarized the law

regarding the expungement of PFA records as follows:

      [I]n Carlacci, a temporary PFA order was issued against Carlacci;
      however, that order was ultimately ordered null and void, as per
      a stipulation entered by the parties. Carlacci, 798 A.2d at 187.
      In ruling that Carlacci was entitled to expungement of that record,
      our Supreme Court focused on the fact that the PFA petition was
      “discontinued before a hearing at which the plaintiff ... would have
      had to meet the burden of proving by a preponderance of the
      evidence that the allegation of abuse contained in the PFA[ ]
      petition[ ] had occurred.” Carlacci, 798 A.2d at 190–191. In
      other words, the trial court [] never issued a permanent order or
      made any findings of fact that the allegations of abuse [] actually
      happened; rather, the record contained only “bald allegations of
      prior alleged acts of abuse that were contained in [the plaintiff's]
      petition, nothing more.” Id. at 191 (citation omitted).

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J-A07003-20




     After Carlacci, this Court decided Charnik. There, a final PFA
     order was entered against Charnik following a hearing. However,
     the plaintiff ultimately sought, and was granted, leave to withdraw
     that final PFA order. Thereafter, Charnik petitioned for
     expungement of the PFA record.

     In affirming the trial court's denial of Charnik's petition, we initially
     reiterated Carlacci's holding that “when a PFA[ ] petition filed
     against a PFA[ ] defendant has been dismissed by court order, ...
     or the PFA[ ] proceedings never evolve beyond the temporary
     order stage, ... expungement is proper as a matter of law.”
     Charnik, 921 A.2d at 1219–1220 (emphasis added; relying on
     Carlacci, supra, and P.E.S. v. K.L., 720 A.2d 487 (Pa. Super.
     1998)). However, we also declared that there exists an
     “expungement continuum” that “ranges from (a) illegal or void
     civil commitments, acquittals in criminal cases, and PFA matters
     that have not been proven and brought to final order (such as ...
     Carlacci ), where expungement is proper as a matter of law, to
     (b) non-conviction or arrest records, as in nol pros or ARD, where
     expungement is a matter of judicial decision..., and to (c)
     conviction records, where there is no right of expungement except
     by statutory authorization in limited circumstances.” Id. at
     1220 (emphasis in original). We then held that Charnik's PFA
     record was “closer to a conviction rather than a non-conviction
     record[,]” as “a final order was entered ... only after facts were
     brought forth proving the allegations of abuse by a fair
     preponderance of the evidence....” Id. Thus, we held that
     expungement was not warranted, presumably because there is no
     statutory authorization for the expungement of a PFA record, id.
     at 1218, and Charnik also did not meet the strict requirements for
     expungement of the records [by a person convicted of a crime],
     id. at 1217.

     Applying Carlacci and Charnik to [Graham], [this Court
     determined] that three of [Graham’s] PFA cases [fell] under prong
     (a) on the ‘expungement continuum,’ and warrant[ed]
     expungement as a matter of law. In those three cases, only
     temporary PFA orders were entered against [Graham], and each
     of those orders were ultimately dismissed before a hearing was
     held, at which Flippen would have had to prove her allegations of
     abuse by a preponderance of the evidence. Therefore, the [three]
     records [at issue] contain[ed] only bald, unproven allegations of


                                      -4-
J-A07003-20


     abuse, to which [Graham was] entitled to expungement as a
     matter of law.

Graham, 179 A.3d at 87–88 (emphasis in original).

     Here, A.V.W. filed for a PFA against Appellant.    There is no dispute,

however, that the PFA court only entered a temporary PFA in this matter by

agreement of the parties. Thereafter, the PFA court ultimately dismissed the

temporary PFA by order, before holding a hearing on the merits of the

allegations set forth in A.V.W.’s PFA petition and before issuing a final PFA

order.   Accordingly, the purported facts contained in A.V.W.’s PFA petition

constituted mere bald allegations of abuse, not facts proven by a

preponderance of the evidence. As such, based upon Carlacci, Charnik, and

Graham, Appellant is entitled to expungement as a matter of law.

     Order vacated and reversed. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/23/2020




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