J-S43015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

G.P.M.                                             IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                           Appellant

                      v.

A.M.F.

                           Appellee                   No. 1752 WDA 2017


                     Appeal from the Order July 11, 2017
              In the Court of Common Pleas of Allegheny County
                    Civil Division at No: FD 16-001705-008

BEFORE: STABILE, DUBOW, and NICHOLS, JJ.

MEMORANDUM BY STABILE, J.:                       FILED DECEMBER 31, 2018

        Appellant G.P.M. (“Father”) appeals from an order denying his motion

to remove copies of a Temporary Protection From Abuse (“TPFA”) order from

the record in this child custody action and/or block the TPFA order from public

view.    We agree with Father that the trial court abused its discretion by

denying his motion, and we reverse and remand for further proceedings.

        Appellee A.M.F. (“Mother”) and Father, the natural parents of a minor

child, were in a brief relationship in Atlanta, Georgia. After their relationship

ended, Mother moved to Allegheny County to keep her whereabouts secret

from Father. On September 13, 2016, Mother filed a Protection From Abuse

(“PFA”) petition against Father and obtained the TPFA order in question.

Around the same time, Mother discovered that she was pregnant, but she kept

the pregnancy secret from Father.       On September 27, 2016, the parties

entered into a civil no-contact agreement. Father did not know Mother was
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pregnant at the time of the agreement. He became aware of the pregnancy

only when he learned Mother was attempting to put the child up for adoption.

Custody litigation commenced after Mother gave birth.

      On May 10, 2017, Father filed a petition for special relief requesting

expungement of the TPFA order, to which Mother agreed. The court granted

Father’s motion and ordered the TPFA order expunged and removed from the

public docket. The case type on the docket changed from PFA to Custody.

      Father filed a motion for an interim custody schedule. Mother filed a

response in opposition in which she referred to the TPFA order in the body of

the response and attached the TPFA order as an exhibit. On June 21, 2017,

the court granted Father’s motion for an interim custody schedule. Mother

moved for reconsideration of this order, once again referring to the TPFA order

in the body of her motion and attaching the TPFA order as an exhibit. Father

filed a response to Mother’s motion for reconsideration with new matter

asserting that Mother violated the expungement order by attaching the TPFA

order to her pleadings, which jeopardized both his reputation and his

Department of Defense (“DOD”) clearances necessary for his employment.

Father requested that the court (1) prohibit Mother from referencing the TPFA

or using it as an exhibit and (2) direct the Department of Court Records to

remove it from pleadings already filed or block it from public view. On July

11, 2017, the court denied Father’s request, finding that any harm to his

reputation was cured by expungement of the TPFA order from the public




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docket, and further finding that it would waste judicial resources for the court

to peruse the pleadings.

      Father moved for reconsideration of the July 11, 2017 order, which the

court denied on August 11, 2017. Instead of appealing the July 11, 2017

order,     Father   appealed   from   the   August   11,   2017   order   denying

reconsideration. This Court quashed Father’s appeal at 1316 WDA 2017 on

the ground that orders denying reconsideration are not appealable.

      Father requested leave to appeal the July 11, 2017 order nunc pro tunc,

which the trial court granted on November 3, 2017. On November 17, 2017,

Father filed the present appeal. Both Father and the trial court complied with

Pa.R.A.P. 1925.

      Father raises two issues in this appeal:

      I.      Did the trial court err/abuse its discretion by denying
              Appellant’s request to have documents relating to the
              [TPFA] order removed and/or blocked from the public
              docket?

      II.     Did the trial court err/abuse its discretion by denying
              Appellant’s request to prohibit the attach[ment] of the
              [TPFA] order to any subsequent pleadings?

Appellant’s Brief at 3. The trial court addressed these issues together, and

we do so as well.

      Before addressing the propriety of the trial court's decision, we must

decide whether the order denying Father’s motion is appealable. “It is

axiomatic that an appeal will lie only from a final order unless otherwise

permitted by statute or rule.” Fried v. Fried, 501 A.2d 211, 213 (Pa. 1985);

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Katz v. Katz, 514 A.2d 1374 (Pa. Super. 1986). The order in question is

interlocutory, but we find that it is appealable under the “collateral order”

doctrine.

      An order is appealable as a collateral order if (1) it is separable from

and collateral to the main cause of action; (2) the right involved is too

important to be denied review; and (3) the questions presented are such that

if review is postponed until a final judgment is rendered in the case the claimed

right will be irreparably lost. Pa.R.A.P. 313(b). In R.W. v. Hampe, 626 A.2d

1218 (Pa. Super. 1993), we held that an order partially sealing the record was

appealable as a collateral order, because “it is separable from the main cause

of action—a lawsuit for personal injuries allegedly arising from medical

malpractice—and its effect is too important to be denied review. If the order

is left to stand until disposition of the merits, any harm claimed by appellant

already will have irrevocably occurred.” Id. at 1220. For similar reasons, we

hold that the order denying Father’s motion to preclude Mother from

introducing the TPFA order in future filings and to remove previously filed TPFA

orders from the record is appealable as a collateral order.        This issue is

separable from the main cause of action, a custody dispute. Its effect is too

important to be denied review, because it could harm Father’s reputation and

impair his DOD clearance. Finally, if we postpone review until the final order

in the custody case, any harm claimed by Father, such as loss of DOD

clearance, will likely have already occurred.


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      Turning to the substance of the appeal, we review a trial court’s decision

to deny partial closure of the record for abuse of discretion. Id.

      “[T]o justify closure or sealing the record a party must overcome the

common law presumption of openness. The existence of a common law right

of access to judicial proceedings and inspection of judicial records is beyond

dispute.” Hampe, 626 A.2d at 1220 (citations omitted). There are several

well-known exceptions to this principle. For example, divorce cases present

an exception, because divorce litigation often serves “only to embarrass and

humiliate” the litigants by disclosing details “which are essentially private in

nature and . . . lack any useful, public purpose.” Id. at 1222. Similarly, the

Juvenile Act provides that “the general public shall be excluded from hearings

under this Chapter” to protect the privacy interests of minors. Id. (citing 42

Pa.C.S.A. § 6336(d)).

      The present case presents another situation in which a party’s interest

in his reputation defeats the common law right of access to inspection of

judicial records. When, as here, the parties in a custody proceeding stipulate

to declare a TPFA order null and void, the target of the TPFA order is entitled

to expungement of the order. Carlacci v. Mazaleski, 798 A.2d 186, 190-91

(Pa. 2002). The purpose of expungement is to protect his reputation, id. at

189, as well as the loss of employment, housing or education that may

accompany a record of domestic violence.             Cf. Commonwealth v.

Armstrong, 434 A.2d 1205, 1207 (Pa. 1981) (expungement of criminal


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records prevents undue loss of employment that might accompany criminal

record). Allowing Mother to inject post-expungement references to the TPFA

order into the record or submit the TPFA order as an exhibit defeats the

purposes of expungement by smearing Father’s reputation and jeopardizing

his employment, housing and educational prospects. The trial court abused

its discretion by permitting this course of conduct to continue subsequent to

expungement of the TPFA order. On remand, Mother is to instructed to refrain

from any further references to the TPFA order or inclusion of the order as an

exhibit to pleadings or motions.

      In addition, the trial court abused its discretion by refusing to direct

removal of all existing references to the TPFA order, either in the body of

pleadings or as exhibits, from the record.     Permitting these references to

remain available for public view frustrates the purpose of expungement by

harming Father’s reputation and other interests, particularly his DOD

clearances.

      The trial court strenuously insists that existing references in the record

to the TPFA order pose little actual risk to Father, and that any attempt to

remove or seal them would waste judicial resources.

      In this particularly acrimonious case, numerous and lengthy
      pleadings have been filed, including those with the TPFA as
      exhibits. Those pleadings, however, appear on the docket as
      “Motions for Special Relief” or other innocuous titles and would
      alert no one perusing the docket of their contents. In order to find
      the TPFA, one would have to individually delve through the
      pleadings. Granting Father’s request would entail expending a
      substantial amount of judicial and administrative resources to

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      rectify a harm that Father has not demonstrated is a “defined and
      serious injury.”

      Here, granting Father’s request would require the Court to devote
      its resources to the removal of the TPFA exhibits to Mother’s
      pleadings as well as reviewing those pleadings for references to
      the TPFA. This is akin to tasking the Court with removing
      language from every pleading or exhibit in domestic cases which
      might harm a litigant’s reputation. In the Court’s Family Division,
      this would be a Herculean, if not impossible, task.

      It is unfortunate but true that, in Family Division, pleadings are
      filed daily wherein litigants make disparaging allegations of
      wrongdoing against each other. A substantial number of those
      allegations are severe enough to damage the reputation of the
      accused party if viewed by the public. If judges were required to
      remove such language or exhibits every time a perceived or
      potential risk of harm to the reputation of a party is raised, the
      Court’s judicial resources would be quickly exhausted.

      Moreover, Father’s argument is made moot by the enactment of
      the Public Access Policy recently adopted by the Pennsylvania
      Supreme Court, which imposes the duty of redact[ion] on the
      Department of Court Records and not the Judge. Family Court
      Pleadings filed by litigants are no longer visible online to
      unregistered members of the public. Pursuant to the Policy’s
      Section 10.0, Limits on Remote Access to Case Records, only
      dockets, court orders, and opinions in family filings are
      electronically accessible to the general public. Pleadings and their
      exhibits are not viewable. As of the date of this Opinion, the
      pleadings in this case are not electronically viewable to the public.

Trial Ct. Op., 3/20/18, at 6-8.

      Although the trial court expresses its position forcefully, we disagree

with its analysis. The Supreme Court’s new Public Access Policy will prevent

electronic access to pleadings and exhibits, but it will not prevent persons

from viewing hard copies of filings in the prothonotary’s office that include or

refer to expunged TPFA orders. The “innocuous titles” of pleadings or motions,


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id. at 6, offer scant protection from inquisitive or vindictive members of the

public who might find it desirable to sift through every page of a public record.

However remote the possibility may be that someone would want to examine

Father’s record with a fine-tooth comb, we still must guard against it.

      We also believe that the trial court overstates the effort it would have

to exert to safeguard expunged TPFA orders from public exposure. Several

routine steps will place the onus on the parties while minimizing the court’s

labors. First, the court should direct Father to list all references to the TPFA

order that he wants removed and their specific locations in the record.

Second, to ensure that Father confines his requests to the TPFA order, the

court should authorize Mother to object to removal of any references that do

not explicitly concern the TPFA order. Third, following review of Father’s list

and Mother’s response, the court should direct the prothonotary to seal or

remove all explicit references to the TPFA order in the record. Following these

simple steps will not tax the court’s resources to any appreciable extent. We

direct the court to implement these, or substantially similar, procedures on

remand. Should Mother continue to violate the expungement or other orders,

consideration of contempt might be in order.

      For these reasons, we direct the trial court on remand to prohibit

additional references to the TPFA order in any pleading or motion and to take

the steps articulated above to remove or seal all existing references to the

TPFA order or exhibits containing the TPFA order presently in the record.


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     Reversed    and   remanded   for   proceedings   consistent   with   this

memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2018




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