J-A12028-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

HELENE MANCUSO-FLANNERY,                : IN THE SUPERIOR COURT OF
                                        :      PENNSYLVANIA
                  Appellee              :
                                        :
           v.                           :
                                        :
DANIEL FLANNERY,                        :
                                        :
                  Appellant             : No. 1622 MDA 2014

            Appeal from the Order entered September 12, 2014,
               Court of Common Pleas, Lackawanna County,
                      Civil Division at No. 14-FC-40888

BEFORE: BOWES, DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED JUNE 23, 2015

     Daniel Flannery (“Husband”) appeals from the entry of an order

pursuant to the Protection from Abuse Act, 23 Pa.C.S.A. §§ 6101 et. seq.

(“PFA Act”), prohibiting him and members of his family from all contact with

Helene Mancuso-Flannery (“Wife”) for a period of three years. Following our

careful review, we reverse.

     The parties married on May 20, 2008.      On November 5, 2013, Wife

told Husband that she was filing for divorce. That evening, while Wife was

lying in bed working on a crossword puzzle, Husband entered the bedroom.

He approached Wife, told her that because they were still married she had

“wifely duties,” and “began pulling on her underwear.” Trial Court Opinion,

11/21/14, at 2.    Wife “fought [Husband] off a little” and he left.   N.T.,
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9/12/14, at 5. The next day, Husband changed the locks on the doors of the

martial residence and excluded Wife therefrom.

     In the ensuing months, Wife began to receive notices that Husband

was viewing her profile on the social media sites Facebook and LinkedIn.

Wife blocked Husband from her Facebook profile but could not do the same

with her LinkedIn account. She did not want to make her LinkedIn profile

private, as it is a professional networking site and she felt that doing so

would defeat the purpose of being on the site. Husband’s repeating viewings

of her profile perturbed Wife greatly. On June 23, 2013, Wife received an

invitation from Husband to connect on LinkedIn. In response, Wife filed a

PFA petition on June 30, 2013, alleging that “[Husband] continues to stalk

me on social media … .”1 See PFA Petition, 6/30/14. The trial court entered

a temporary PFA order on the same day.          Following two continuances, a

hearing on Wife’s petition occurred on September 12, 2014, at which time

Wife mentioned the November 5, 2013 incident for the first time in

connection with her PFA action. At the conclusion of the hearing, the trial

court entered a final PFA order prohibiting Husband and his family from

having any contact with Wife for three years.

     Husband then filed this timely appeal.       He presents two issues on

appeal, both of which challenge the trial court’s determination that Wife



1
  Wife made no mention of the November 5, 2013 incident in her PFA
petition.


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presented sufficient evidence to support a finding of abuse as defined by the

PFA Act. Husband’s Brief at 1-2.2 “Our standard of review for PFA orders is

well settled. In the context of a PFA order, we review the trial court's legal

conclusions for an error of law or abuse of discretion.” Boykai v. Young,

83 A.3d 1043, 1045 (Pa. Super. 2014) (citation omitted).

      “The [PFA Act] was created to protect the victims of domestic violence

from their abusers. Its goal is not punishment of abusers for past violent

behavior, but advance prevention of physical and sexual abuse.” Burke ex

rel. Burke v. Bauman, 814 A.2d 206, 208 (Pa. Super. 2002) (internal

citations omitted). The PFA Act defines abuse, in relevant part, as follows:


            “Abuse.”    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:

                                     ***

            (2) Placing another in reasonable fear of imminent
            serious bodily injury.

                                     ***


2
  In degradation of Rule of Appellate Procedure 2119(a), Husband did not
address each issue individually in the argument portion of his brief. See
Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as
there are questions to be argued; and shall have at the head of each part--in
distinctive type or in type distinctively displayed--the particular point treated
therein, followed by such discussion and citation of authorities as are
deemed pertinent.”). While this Court is empowered to quash appeals due to
briefing defects, in this instance the defect is not so great that it impedes
our ability to effectively review the issues presented. We urge Husband’s
counsel to adhere to the Rule of Appellate Procedure in the future.


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            (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(a).    Both subsections (2) and (5) of § 6102 involve

reasonable fear of bodily injury, albeit to different degrees: subsection (2)

involves conduct that places a victim in reasonable fear of imminent

serious bodily injury, while subsection (5) addresses courses of conduct

that place the victim in reasonable fear of bodily injury.3

      The trial court found that Husband committed abuse pursuant to

subsections (2) and (5). See Trial Court Opinion, 11/21/14, at 4. The trial

court’s finding with regard to subsection (2) is apparently based upon the

November 5, 2013 incident, as there was no other evidence that could

conceivably support a finding that Wife was placed in “reasonable fear of

imminent serious bodily injury” as required under subsection (2).    In that

regard, the trial court found that “[Husband] physically threatened [Wife] on

the day she filed for divorce … . [Husband] threatened [Wife] with sexual



3
    The PFA does not contain definitions of serious bodily injury or bodily
injury. However, we note that the Crimes Code defines serious bodily injury
as “[b]odily injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ,” and bodily injury as “impairment
of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301.


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abuse by pulling on her underwear and stating to her that she still has

“wifely duties.” Trial Court Opinion, 11/21/14, at 4.

      First, crucially, the trial court found only that Husband “physically

threatened” Wife on the date in question; it did not find that he threatened

Wife with imminent serious bodily harm, which, as noted, is required for a

finding of abuse under subsection (2).4     Furthermore, Wife testified that

when this incident occurred she was “shocked and scared, threatened …

[and] [she] just kind of fought him off a little, and then he just left the

room.” N.T., 9/12/14, at 5. Wife did not testify that at any point she feared

imminent serious bodily injury.      Moreover, there is no evidence that

Husband had a history of physically abusing or threatening to harm Wife,

which could give rise to a reasonable fear of imminent serious bodily injury.


4
  We acknowledge the trial court’s statement that Husband “threatened
[Wife] with sexual abuse by pulling on her underwear and stating to her that
she still has ‘wifely duties.’” Trial Court Opinion, 11/21/14, at 4. The trial
court did not find that Husband’s conduct violated subsection (1), which
defines abuse as:

            (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.

As a result of the trial court’s finding that Husband violated subsection (2)
and not subsection (1), we must conclude that the trial court did not find
that Husband’s actions amounted to an attempted sexual assault or other
sexual offense addressed in subsection (1), but rather concluded that it
instilled a reasonable fear of serious imminent bodily injury, as required by
subsection (2).


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See Snyder v. Snyder, 629 A.2d 977, 983 (Pa. Super. 1993) (holding that

husband's “increasingly bellicose behavior” could reasonably have placed

wife in fear of imminent serious bodily harm). To the contrary, Wife testified

that Husband never threatened her physically, prior to or after this incident.5

Id. at 19-20. Thus, under the facts of this case, the evidence does not

support a finding of abuse pursuant to subsection (2). Cf. Raker v. Raker,

847 A.2d 720, 726 (Pa. Super. 2004) (holding that evidence supported

finding of reasonable fear of imminent serious bodily injury warranting entry

of PFA order where wife testified that estranged husband entered her home

at 2:00 a.m. carrying a knife and husband had previously threatened and

physically assaulted wife); Snyder, 629 A.2d at 983.

      The trial court also found abuse as defined by subsection (5) because

Husband “repeatedly stalked [Wife] through social media by viewing her

profile constantly.” Trial Court Opinion, 11/21/14, at 2. It concluded that

“[t]his cyber stalking, coupled with [Husband’s] past history of violence

towards [Wife]” (evidently referring to the incident of November 5, 2013),

established sufficient evidence of abuse, and cites the Burke case in support

of its conclusion.




5
   We note that this event occurred slightly more than eight months before
Wife filed her PFA petition. See N.T., 9/12/14, at 20. We likewise note
again that Wife did not allege the November 5, 2013 incident in her petition
as a basis for the issuance of the PFA order.


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     The Burke case is readily distinguishable from the present case. The

facts in Burke were as follows:

              Appellant filed a PFA petition against her former
              boyfriend, Jeffrey S. Bauman. She alleged the
              following. On August 23, 2001, Bauman called her to
              retrieve his clothes from her residence. In the course
              of this telephone call, the two discussed criminal
              charges that Bauman was facing for destroying
              Appellant's property. Bauman said: (1) “I'll get you
              back. You are going to burn for this”; (2) “These are
              promises, not threats”; and (3) “I will be thinking
              every day if I go to jail how I can't wait to get out
              and make you pay. I'm going to get someone to
              destroy you and the rest of your stuff.” In prior
              incidents, Bauman was physically and mentally
              abusive toward Appellant and her minor children,
              including kicking holes in walls and doors, smashing
              her son's TV, having “fits of rage” against the
              children, pushing Appellant, and destroying her car
              and household property. On the same day, the court
              entered a temporary PFA order against Bauman.

Burke, 814 A.2d at 207. The trial court subsequently denied the request for

a final PFA order, and the Appellant appealed. This Court reversed the trial

court. We stated,

              In the instant case, the trial court articulated only
              one basis for its decision: namely, an apparent belief
              that telephone calls can never form the basis of a
              PFA order. We disagree. It is possible for a person
              to be placed in reasonable fear of imminent bodily
              injury based on telephone calls, particularly when
              coupled with the alleged abuser’s past history of
              violence. See[] D.H. v. B.O., 734 A.2d 409, 412
              (Pa. Super. 1999) (assuming that telephone calls
              may form the basis of a PFA, but reversing the PFA
              order because the alleged abuser did not make
              physical threats).

Id. at 209.


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      The differences between the present case and Burke are stark.       Of

critical importance, the defendant in Burke had an extensive history of

violence against the appellant and he made direct, specific, threats of

violence against her in the complained-of course of conduct (the telephone

calls). The combination of these two factors – a history of violence/abuse

and articulated threats – supported a finding of abuse in that case. Id.; see

also R.G. v. T.D., 672 A.2d 341 (Pa. Super. 1996) (holding that threatening

phone messages and emails, that escalated in hostility and included death

threats, and defendant’s refusal to cease contacting victim despite her

requests that he do so, were sufficient to establish abuse for PFA order). In

the present case, there is no history of Husband making threats of violence

against Wife. The complained-of conduct consists only of viewing her public

profile on LinkedIn and sending her a request to connect on that forum.

Husband does not have a history of violent behavior against Wife, as was the

case in Burke or R.G. The factual bases for those findings of abuse are not

present in this case.

      In support of his position, Husband draws our attention to D.H. v.

B.O., which this Court cited in Burke.      In that case, the parties were

roommates and sexual partners before the plaintiff traveled to Florida on a

business trip.

                  [W]hen [Appellee] returned, [he] learned that
            appellant had left several “disturbing” messages at
            his place of employment. Appellee then telephoned



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           appellant and terminated the relationship. Appellee
           testified that in an effort “to try and repair the
           relationship,” appellant then contacted him via pager
           and telephone calls at his home and office. In total,
           appellant attempted communication with appellee at
           least thirteen times in the course of five days. In
           one of the pages, appellant stated, “I know what you
           [‘re] doing with that pervert [, your co-worker],” and
           threatened, “I’m going to get him any way I can.”
           See Exhibit A, Appellant’s Log of Phone Calls from
           Appellee, at 1. Appellee also testified that appellant
           “has threatened the life of [his] boss and he did say
           that he was going to come to the office and strangle
           [my boss], and that he would not be alone.” See
           N.T., 5/29/98, at 10. On another occasion, appellant
           threatened to reveal to the proper authorities that
           [A]ppellee’s company, which was in bankruptcy
           proceedings, expended funds to send its employees,
           appellee and [appellee’s co-worker], on vacation.
           Appellee’s testimony and a self-compiled telephone
           log were the only evidence presented at the hearing.

           Unfortunately, the complained of conduct does not
           amount to an “act of abuse” under the [PFA] Act.
           The only physical threats appellant made were
           directed towards appellee’s co-worker.   Appellant
           never threatened to cause physical injury to
           appellee. The one threat directed toward appellee
           was not a threat to cause physical harm but to
           expose potentially damaging financial information
           about appellee's employer. Furthermore, the other
           messages complained of relay no more than
           appellant’s chagrin over unrequited love. This
           evidence is insufficient to support a finding that
           appellant engaged in a repeated course of conduct
           which would place appellee in reasonable fear of
           bodily injury.

D.H., 734 A.2d at 410-12.

     In this case, like D.H., there is a pattern of contact, but an absolute

and total absence of any threat of physical harm and no historical basis to



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support a reasonable fear of bodily injury.        Accordingly, the trial court

abused its discretion in entering the PFA order, and so we reverse its order.6

In so doing, we sympathize with Wife who was attempting to break all ties

with Husband. However, the purpose of the PFA is not to shield one from

annoyances, but to prevent physical and sexual abuse. Burke, 814 A.2d at

208. A PFA order was simply not a proper channel for relief.

      Order reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/23/2015




6
   We note that Wife likens her case to Mescanti v. Mescanti, 956 A.2d
1017 (Pa. Super. 2008), in which this Court found a course of conduct
sufficient to establish a reasonable fear of bodily harm. See Wife’s Brief at
7. The course of conduct by the husband in Mescanti was significantly
more sinister than the serial social profile views alleged in the present case.
Specifically, the husband in Mescanti repeatedly locked wife out of home,
prevented her from leaving home, deprived her of sleep, followed her when
she went out with friends, and went to the basement following arguments
with her and cocked his guns in a manner to ensure wife could hear.
Mescanti, 956 A.2d at 1023-24. We are unpersuaded by Wife’s attempt to
analogize the facts of these cases.


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