J. A29003/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


S.A.S. AND ON BEHALF OF                 :     IN THE SUPERIOR COURT OF
MINOR CHILD,                            :          PENNSYLVANIA
                     APPELLANT          :
                v.                      :
                                        :
S.E.B.                                  :
                                        :
                                        :
                                        :     No. 325 WDA 2016

             Appeal from the Order Entered February 9, 2016
            In the Court of Common Pleas of Allegheny County
                 Family Court at No(s): FD 15-008183-010


S.A.S. AND ON BEHALF OF                 :     IN THE SUPERIOR COURT OF
MINOR CHILD,                            :          PENNSYLVANIA
                     APPELLANT          :
                v.                      :
                                        :
S.E.B.                                  :
                                        :
                                        :     No. 337 WDA 2016

             Appeal from the Order Entered February 9, 2016
            In the Court of Common Pleas of Allegheny County
                 Family Court at No(s): FD 15-008183-010


BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                       FILED JANUARY 11, 2017

     In this consolidated appeal, Appellant, S.A.S. (“Mother”), appeals from

two February 9, 2016 Orders entered in the Court of Common Pleas of

Allegheny County which denied Mother’s Petitions for Protection From Abuse
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(“PFA”) against Appellee, S.E.B. (“Father”), without an evidentiary hearing. 1

Upon review, we are constrained to vacate the Orders and remand for an

evidentiary hearing as required by 23 Pa.C.S. § 6107(a).

      A detailed factual and procedural history is not necessary to our

disposition.   In sum, Mother and Father are married but have been

separated since November of 2014 and have been involved in an

acrimonious custody dispute regarding their ten-year-old son, F.H. (“Child”),

since June of 2015.

      On October 23, 2015, Mother filed a PFA Petition with request for a

temporary PFA Order on behalf of herself and Child after Child made sex

abuse allegations against Father. After an ex parte hearing, the trial court

issued a temporary PFA Order against Father and scheduled an evidentiary

hearing. On December 28, 2015, after a five-day long evidentiary hearing,

the trial court denied Mother’s PFA Petition but granted Mother sole legal

custody and primary physical custody of Child and limited Father’s contact

with Child to supervised visitation two times per week.

      On February 2, 2016, Mother filed a PFA Petition with a request for a

temporary PFA Order alleging, inter alia, that Child had disclosed new sex

abuse allegations against Father and alleging that Father had sent Mother a

1
   The Orders are dated February 2, 2016, and February 3, 2016,
respectively, but were both filed on February 9, 2016. We note that the
February 3, 2016 Order is incorrectly dated, and should reflect a date on or
after February 4, 2016, when the trial court conducted an ex parte hearing
on the second PFA Petition.



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threatening text message. On the same day, the Honorable Lee Mazur held

an ex parte hearing and said, “you have to get this in front of Judge Clark.

She already heard it and I’m not going to decide it.”    N.T. PFA Ex Parte

Hearing, 2/2/16, at 14.     Judge Mazur denied the PFA Petition without

scheduling an evidentiary hearing.

     On February 3, 2016, Mother re-filed the same PFA Petition with a

request for a temporary PFA Order.    On February 4, 2016, the Honorable

Kim Berkeley Clark conducted an ex parte hearing and denied Mother’s PFA

Petition without scheduling an evidentiary hearing, but suspended visitation

between Father and Child.

     Mother timely appealed. Both Mother and the trial court complied with

Pa.R.A.P. 1925.

     Mother raises the following issues on appeal:

     1. Whether the trial court erred as a matter of law and abused
        its discretion on February 2, 2016 and February 4, 2016 when
        it denied Mother’s [PFA Petitions] without conducting an ex
        parte hearing on Mother’s request for a Temporary Order for
        Protection from Abuse, as required pursuant to 23 Pa.C.S. §
        6107(b).[2]

2
   Mother’s Statement of Questions Involved asserts that the trial court
abused its discretion on both February 2, 2016, and February 4, 2016, when
it failed to conduct a proper ex parte hearing. Mother’s Brief at 11.
However, Mother’s Argument section only examines the February 2, 2016 ex
parte hearing and fails to develop any argument regarding the February 4,
2016 ex parte hearing. Mother’s Brief at 15-16. Accordingly, we find the
issue regarding the February 4, 2016 ex parte hearing to be waived. See
Lackner v. Glossner, 892 A.2d 21, 29 (Pa. Super. 2006) (“arguments
which are not appropriately developed are waived”); see also Pa.R.A.P.
2101-2119.



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      2. Whether the trial court erred as a matter of law and abused
         its discretion by failing to schedule a final hearing on Mother’s
         [PFA Petitions], as required pursuant to 23 Pa.C.S. § 6107(a).

Mother’s Brief at 11 (reordered for ease of disposition).

      It is well settled that “[w]e review the propriety of a PFA order for an

abuse of discretion or an error of law.”    Ferko-Fox v. Fox, 68 A.3d 917,

920 (Pa. Super. 2013).

      Mother’s first claim is that the trial court erred on February 2, 2016

when it failed to conduct a “proper ex parte hearing” on Mother’s PFA

Petition requesting a temporary PFA Order, as required by 23 Pa.C.S. §

6107(b). Mother’s Brief at 15. This claim is without merit.

      The PFA Act states, inter alia, that “[i]f 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.” 23 Pa.C.S. § 6107(b) (emphasis added).

While “the statute does not [set forth] the nature of the required

proceeding,” this Court has held “unequivocally that absent an exigent

circumstance that prevents a petitioner’s appearance, due process mandates

that a trial court convene an ex parte hearing prior to entering a temporary

PFA order pursuant to § 6107(b).”       Ferko-Fox, supra at 923, 925 (Pa.

Super. 2013); see also 23 Pa.C.S. § 6107(b).

      There is no question that the PFA Act required the trial court to hold an

ex parte hearing, and the trial court held that ex parte hearing on February


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2, 2016.   The issue before us is whether the February 2, 2016 ex parte

hearing was a “proper” hearing. Mother’s Brief at 15. A review of the record

reveals that it was.

      Mother appeared in front of Judge Mazur on February 2, 2016, to

present her PFA Petition that requested a temporary PFA Order. Mother

testified that she was afraid to go home, Father had threatened her in a text

message, Father had damaged her home over time, the Child was terrified

at school, the Child disclosed additional sex abuse allegations against Father,

and the Child was terrified to visit with Father. N.T. PFA Ex Parte Hearing,

2/2/16, at 2-14.       Judge Mazur listened to the testimony, engaged with

Mother, and asked over ten questions regarding the merits of the PFA

Petition. Id. The transcribed testimony spans thirteen pages.

      We review the nature of the ex parte proceeding recognizing that “the

statute does not [set forth] the nature of the required proceeding[.]”

Ferko-Fox, supra at 925.        In this case, the trial court gave Mother an

opportunity to testify regarding the merits of the Petition and the trial court

asked multiple questions in response. We find this to be a proper ex parte

hearing pursuant to 23 Pa.C.S. § 6107(b). Accordingly, the trial court did

not abuse its discretion.

      Mother next avers that the trial court erred as a matter of law and

abused its discretion on February 2, 2016, and February 4, 2016, by failing




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to schedule a final hearing on Mother’s PFA Petitions, as required pursuant to

23 Pa.C.S. § 6107(a). Mother’s Brief at 16. We agree.

      The PFA Act states unequivocally: “[w]ithin 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. § 6107(a) (emphasis added).

This Court has held that under the PFA Act, evidentiary hearings are

mandatory because the statutory use of the word “shall” mandates that a

trial court conduct such a hearing. Burke ex rel. Burke v. Bauman, 814

A.2d 206, 208 (Pa. Super. 2002).

      Moreover, an ex parte hearing to determine whether the court should

issue a temporary PFA Order cannot qualify as the evidentiary hearing

required by 23 Pa.C.S. § 6107(a). Drew v. Drew, 870 A.2d 377, 378 (Pa.

Super. 2005). The two hearings require different standards of proof.        Id.

The ex parte hearing requires the petitioner to convince the court that he or

she is in immediate and present danger of abuse, while the evidentiary

hearing requires the petitioner to prove the allegations of abuse by a

preponderance of the evidence. Id.; 23 Pa.C.S. § 6107.

      In this case, the trial court opined, “[a]fter two ex parte hearings, both

Judge Mazur and [Judge Clark] found that [the PFA Petitions] failed to allege

any substantially new allegations of immediate and present danger of abuse

regarding [Mother] or [Child] which had not been raised and considered by



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[Judge Clark] during a five-day PFA trial that concluded on December 22,

2015. Additionally, it appears that [Mother] is attempting to take a second

bite of the apple and usurp the contentious custody proceedings.”       Trial

Court Opinion, filed 6/27/16, at 9.

      We share the trial court’s concerns that the Mother is using these

proceedings to usurp the contentious custody proceedings, however,

Mother’s actions do not vitiate the mandatory language that the trial court

must hold an evidentiary hearing. 23 Pa.C.S. § 6107(a).

      Accordingly, we find that the trial court committed reversible error on

February 2, 2016, and again on February 4, 2016, when it denied Mother’s

identical PFA Petitions without conducting an evidentiary hearing as required

by 23 Pa.C.S § 6107(a).       The trial court is to conduct a consolidated

evidentiary hearing on both PFA Petitions and is free to apply principles of

res judicata to dismiss unfounded allegations that the trial court addressed

in the December evidentiary hearing.

      Orders vacated.     Case remanded with instructions.       Jurisdiction

relinquished.

Judge Moulton joins the memorandum.

Judge Musmanno files a dissenting statement.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/11/2017




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