J. S25033/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

A.M.D., ON BEHALF OF A.D., A MINOR :            IN THE SUPERIOR COURT OF
                                   :                  PENNSYLVANIA
                v.                 :
                                   :
T.A.B.,                            :               No. 3049 EDA 2016
                                   :
                    Appellant      :


               Appeal from the Order Entered August 24, 2016,
                in the Court of Common Pleas of Pike County
                     Civil Division at No. 1040-2016 Civil


BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 17, 2017

     T.A.B. appeals from the August 24, 2016 final order for protection of

victims of intimidation (“PFI”) entered in the Court of Common Pleas of Pike

County pursuant to the Protection of Victims of Sexual Violence or

Intimidation Act, 42 Pa.C.S.A. §§ 62A01-62A20 (the “Act”).          We are

constrained to remand.

     The trial court set forth the following:

                 On July 25, 2016, [A.M.D. (“Mother”)] filed a
           Protection from Intimidation Petition on behalf of her
           daughter, [A.D. (“victim”)], against [appellant]. The
           parties are neighbors whose property lines border
           one another. At which time the Honorable President
           Judge Joseph F. Kameen issued a temporary
           Protection from Intimidation order and scheduled a
           hearing for August 3, 2016, which was continued to
           August 24, 2016.       This Court entered the Final
           Protection from Intimidation Order at issue following
           that hearing.     Criminal proceedings were also
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          initiated and completed in several instances involving
          these parties, including a conviction of [appellant]
          for harassment under 18 Pa.C.S.[A.] § 2709(a)(3)
          ....      District Justice Menditto first convicted
          [appellant] under this section, [and] the Honorable
          Gregory H. Chelak upheld the conviction on appeal to
          the Court of Common Pleas of Pike County.

                 At the hearing, [Mother] and [victim] testified
          to numerous incidents with [appellant]. The initial
          incident occurred on July 5, 2015, in a Facebook post
          written following an undescribed incident with some
          neighborhood children, [appellant] referred to
          [victim] as “the Birchwood Lake whore.”           More
          Facebook posts followed from [appellant], which
          suggested [appellant] would “go to jail” if something
          happened to her children because of [victim’s]
          family; and a post where [appellant] posted to
          [victim’s] older sister, [K.A.], “Wake up, cut yourself.
          Your brother wants to kill himself. . . [.]”

                A second incident occurred sometime in July,
          2015 where [appellant] ran [victim] and some of her
          friends off the road with her vehicle.        A group
          consisting of [victim], her brother[, G.D.], and four
          friends walked to the community pool.              As
          [appellant] sped past the group, one of the minors
          asked [appellant] to “please slow down,” to which
          [appellant] stopped and exited the vehicle, and an
          argument ensued which ended when [appellant]
          stated to [G.D.], “Why don’t you go home and stab a
          dog?” prior to driving away. [Victim] testified she
          was in fear for her safety during that incident.

                 As a result of [victim’s] fear of [appellant], she
          stopped going to the community pool which she
          frequented during the summer months. Since the
          filing of the instant action, [appellant] appeared at
          the community pool during the summer of 2016
          much more frequently than before, [appellant] sat at
          a table while at the pool and [victim] felt
          intimidated, “whenever I was there she was always
          there. . . [.]” A lifeguard asked [appellant] to leave
          the community pool following an argument with the


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              [victim’s] entire family on July 17, 2015, where
              [appellant] went “completely crazy.”

                    An incident occurred as to a property line
              dispute on August 30, 2015, where [appellant] called
              [G.D.] a “fucking faggot with his fucking faggot
              tattoos,” and called [victim] “a fucking whore.”

                     As well, an incident occurred around the end of
              May, 2016 while home alone in her bedroom,
              [victim] overheard through an open window
              [appellant] discussing [victim’s] family with another
              neighbor, Tony. [Appellant] told Tony she would
              “take down” [victim’s] parents. As a result, [victim]
              called [Mother], asked her to return home, and
              locked the doors and windows to the house.

                    The most recent incident occurred in early
              August of 2016. [Victim] and a friend had entered
              the Dollar General where [appellant] is employed,
              upon entering the store [appellant] spoke loudly “I
              can’t wait on these people, I have a PFI against
              them.”

Trial court opinion, 11/21/16 at 1-3 (citations to notes of testimony

omitted).

     The record reflects that following entry of the PFI, which expires on

August 23, 2019, appellant filed a timely notice of appeal to this court.

Appellant then complied with the trial court’s order directing her to file a

concise     statement   of   errors   complained   of   on   appeal   pursuant   to

Pa.R.A.P. 1925(b).      Subsequently, the trial court filed its Rule 1925(a)

opinion.

     Appellant raises two issues for our review:

              1.    Whether the Trial Court erred and abused its
                    discretion by granting [the PFI] because


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                     [victim] failed   to present evidence of
                     intimidation as   defined by 42 Pa.C.S.[A.
                     § ]62A03[?]

            2.       Whether the Trial Court erred and abused its
                     discretion by including language in the [PFI]
                     which mandated that [a]ppellant stay at least
                     fifty (50) feet away from [victim], when no
                     such authority was granted to the Court[?]

Appellant’s brief at 5.

      Appellant first argues that the evidence of intimidation was insufficient

to allow the trial court to enter a PFI against her. This issue requires us to

interpret the Act.

      The Statutory Construction Act of 1972, 1 Pa.C.S.A. §§ 1501-1991,

guides our interpretation of a statute.

            The objective of all interpretation and construction of
            statutes is to ascertain and effectuate the legislative
            intent behind the statute. 1 Pa.C.S.[A.] § 1921(a).
            When the plain language of a statute is clear and
            free from all ambiguity, it is the best indication of
            legislative intent. 1 Pa.C.S.[A.] § 1921(b); see also
            Chanceford Aviation v. Chanceford Twp. Bd. of
            Supervisors, 592 Pa. 100, 923 A.2d 1099, 1104
            (Pa. 2007).

            When, however, the words of a statute are
            ambiguous, a number of factors are used in
            determining legislative intent, including the purpose
            of the statute and the consequences of a particular
            interpretation.        1   Pa.C.S.[A.]    §   1921(c).
            Furthermore, “it is axiomatic that in determining
            legislative intent, all sections of a statute must be
            read together and in conjunction with each other,
            and construed with reference to the entire statute.”
            Hoffman Mining Co., Inc., v. Zoning Hearing Bd.
            of Adams Twp., Cambria Cnty., 612 Pa. 598, 32
            A.3d 587, 592 (Pa. 2011) (internal quotes and


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            citation omitted); see also 1 Pa.C.S.[A.] § 1932
            (statutes are considered to be in pari materia when
            they relate to the same persons or things, and
            statutes or parts of statutes in pari materia shall be
            construed together, if possible). Lastly, we presume
            that the legislature did not intend an unreasonable or
            absurd result. 1 Pa.C.S.[A.] § 1922(1).

Watts v. Manheim Twp. Sch. Dist., 121 A.3d 964, 979 (Pa. 2015).

      Here, the trial court entered the PFI to protect the victim from

appellant’s intimidation. Our General Assembly set forth its findings and the

purpose of the Act, in relevant part, as follows:

            (2)    [I]ntimidation   can     inflict    humiliation,
                   degradation and terror on the victim.

            ....

            (5)    Victims of [] intimidation desire safety and
                   protection from future interactions with their
                   offender, regardless of whether they seek
                   criminal prosecution.

            (6)    This chapter provides the victim with a civil
                   remedy requiring the offender to stay away
                   from the victim, as well as other appropriate
                   relief.

42 Pa.C.S.A. § 62A02(2), (5) & (6).

      The Act defines “intimidation,” in pertinent part, as

            [c]onduct constituting a crime under either of the
            following provisions between persons who are not
            family or household members:

                   18 Pa.C.S.[A.] § 2709(a)(4), (5), (6) or
                   (7) (relating to harassment) where the
                   conduct is committed by a person
                   18 years of age or older against a person
                   under 18 years of age.


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42 Pa.C.S.A. § 62A03. Under the Crimes Code,

            [a] person commits the crime of harassment when,
            with intent to harass, annoy or alarm another, the
            person:

            (4)    communicates to or about such other
                   person any lewd, lascivious, threatening
                   or obscene words, language, drawings or
                   caricatures;

            (5)    communicates   repeatedly         in     an
                   anonymous manner;

            (6)    communicates repeatedly at extremely
                   inconvenient hours; or

            (7)    communicates repeatedly in a manner
                   other than specified in paragraphs (4),
                   (5) and (6).

18 Pa.C.S.A. § 2709(a)(4)-(7).

      Appellant maintains that Mother, on behalf of the victim, presented

insufficient evidence of intimidation to sustain the PFI.    The Act, however,

requires the plaintiff:

            (1)    to assert that the plaintiff or another
                   individual, as appropriate, is a victim of sexual
                   violence or intimidation committed by the
                   defendant; and

            (2)    to prove by preponderance of the evidence
                   that the plaintiff or another individual, as
                   appropriate, is at a continued risk of harm
                   from the defendant.

42 Pa.C.S.A. § 62A06(a).      In this case, Mother, on behalf of the victim,

asserted that the victim was a victim of intimidation by appellant.      With



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respect to findings of intimidation under the Act, the Pennsylvania Rules of

Civil Procedure provide, in relevant part, that “[t]he decision of the court

may consist of only general findings of sexual violence and/or intimidation,

but shall dispose of all claims for relief.”   Pa.R.Civ.P. 1957.    Therefore,

following a PFI court’s general findings of intimidation, Mother, on behalf of

the victim, was then required to prove by a preponderance of the evidence

that the victim is “at a continued risk of harm” from appellant as required by

the plain language of Section 62A06(a)(2) of the Act.

      Here, the trial court conducted a PFI hearing and found that

appellant’s    conduct   constituted    intimidation    under   Crimes   Code

Sections 2709(a)(4) and (7).     The trial court, however, did not address

whether Mother, on behalf of the victim, proved by a preponderance of the

evidence that the victim is at a continued risk of harm from appellant, as

required under Section 62A06(a)(2) of the Act.             Therefore, we are

constrained to remand to the trial court for the preparation of an opinion

that addresses whether Mother, on behalf of the victim, demonstrated by a

preponderance of the evidence that the victim is at a continued risk of harm

from appellant, to be filed within 60 days.

      Remanded for further proceedings consistent with this memorandum.

Jurisdiction retained.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2017




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