J-A06025-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    S.G.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    R.G.                                       :
                                               :
                       Appellant               :   No. 1906 EDA 2019

                  Appeal from the Order Entered May 30, 2019
     In the Court of Common Pleas of Chester County Civil Division at No(s):
                                2019-02478-PF


BEFORE:      STABILE, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                           FILED APRIL 14, 2020

        Appellant, R.G., appeals from the May 30, 2019, three-Year, final

Protection from Abuse (“PFA”) Order entered by the Court of Common Pleas

of Chester County in favor of Appellee, S.G, the petitioner. Herein, Appellant

contends that in conducting a full evidentiary hearing on Appellee’s petition,

the court violated the “collateral jurisdiction rule,” as encompassed in the “law

of the case” doctrine, because it ignored and effectively overruled a prior order

of the same court. We affirm.

        On March 8, 2019, Appellee filed a PFA petition against her husband,

Appellant, naming herself and the parties’ two-year old daughter as protected

parties and asking for a three-year PFA order. The court entered a temporary




____________________________________________


*   Former Justice specially assigned to the Superior Court.
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PFA order naming Appellee and her daughter as protected parties and

scheduling a Final PFA Order hearing for March 21, 2019.

        Prior to the commencement of the March 21, 2019 hearing, Appellee

asked for the recusal of the scheduled judge, the Honorable Allison Bell Royer,

because Appellant had some involvement in the judge’s political campaign.

Judge Royer agreed that recusal was required and indicated that she would

not be hearing evidence or making any rulings in the matter. N.T., 3/21/19,

at 5.

        Upon learning the parties had “reach[ed] a very temporary solution until

[they would] have [their] next court date,” however, the court agreed to sign

off on that agreement within her “Temporary Order and Order of Continuance”

of March 21, 2019. The order referred to the parties’ agreement, as follows:

        The Temporary Order for Protection from Abuse dated 3/8/19 shall
        remain in full force and effect until further Order of this Court with
        the following exceptions: 1. [Appellee] is removed from being a
        protected person; 2. Communication between the parties relating
        to custody are not a violation of the PFA. . . . Custody
        communications . . . shall be via text or email only; and 3. If no
        violations[,] [Appellee] shall withdraw the petition for protection
        from abuse on May 21, 2019.

Temporary Order and Order for Continuance, 3/21/19.

        On May 23, 2019, the Honorable Robert J. Shenkin, Senior Judge,

presided over the PFA Hearing. Counsel for Appellant began the hearing by

informing the court that because Appellant had committed no violations of the

two prior PFA orders, Appellee was required to withdraw her PFA petition in

accordance with the parties’ agreement incorporated in the court’s prior order.


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N.T., 5/23/19, at 2-3. Appellee, however, declined to withdraw her petition

because she still did not feel safe and Senior Judge Shenkin ruled that her

withdrawal was not required. N.T. at 4. Furthermore, in rejecting Appellee’s

alternative argument that the evidentiary record should be limited to the prior

60 days pursuant to the parties’ agreement, Senior Judge Shenkin indicated

he would preside over a full evidentiary hearing in which he would consider all

relevant evidence. N.T. at 4.

       At the conclusion of evidence, Senior Judge Shenkin announced he was

entering a three-year Final PFA order, which he filed on May 30, 2019. This

timely appeal followed.1

       Appellant presents the following two questions for our consideration:


       1.     [Did] the trial court err[] as a matter of law and/or abuse[]
       its discretion by ignoring the law of the case doctrine and violating
       the coordinate jurisdiction rule, when it sub silentio overruled the
       previous trial court judge’s prior temporary protection from abuse
       order and directed the parties to proceed with a full hearing on
       the merits of the Appellee’s original protection from abuse
       petition, without making an initial finding that the Appellant had
       violated the previous trial court judge’s order?
____________________________________________


1 Notably, the appeal was timely filed. It appears that the May 30th order was
entered on the trial court docket on the same day. Therefore, the appeal was
required to be filed within 30 days of May 30th, or by June 29th, which was a
Saturday. Review of the trial court docket reveals that the Notice of Appeal
was filed on Monday, July 1, 2019, which was timely. See Pa.R.A.P. 903(a)
(notice of appeal shall be filed within 30 days after the entry of the order from
which the appeal is taken); see also Pa.R.A.P. Note (Pa.R.A.P. 107
incorporates by reference the rules of construction of the Statute Construction
Act of 1972, 1 Pa.C.S. §§ 1901-1991. 1 Pa.C.S. § 1908(2) provides for the
omission of the last day of time which falls on Saturday, Sunday or legal
holiday).

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      2.     [Did] the trial court err[] as a matter of law and/or abuse[]
      its discretion by proceeding with a full hearing on the merits of the
      Appellee’s protection from abuse petition when there was no basis
      or credible evidence to support a finding that the Appellant
      violated the prior temporary protection from abuse order?

Appellant’s brief, at 9.

      Our standard of review in an appeal from a PFA order is well-settled:

      In an appeal from a PFA action, this Court reviews the trial court's
      legal conclusions for an error of law or an abuse of discretion.”
      Hood—O'Hara v. Wills, 873 A.2d 757, 759 (Pa.Super. 2005)
      quoted in Lawrence v. Bordner, 907 A.2d 1109, 1112
      (Pa.Super. 2006). Assessing the “[c]redibility of witnesses and
      the weight to be accorded to their testimony is within the exclusive
      province of the trial court as the fact finder. Karch v. Karch, 885
      A.2d 535, 537 (Pa.Super. 2005) (quoted in Mescanti v.
      Mescanti, 956 A.2d 1017, 1020 (Pa. Super. 2008).

S.W. v. S.F., 196 A.3d 224, 230 (Pa. Super. 2018).

      In his first issue, Appellant argues that Senior Judge Shenkin violated

the law of the case doctrine when he conducted a full hearing on Appellee’s

PFA petition without first finding that Appellant violated Judge Royer’s

Temporary Order. Only then, Appellant contends, would Appellee have been

relieved of her prior agreement to withdraw her petition.

      The law of the case doctrine comprises three rules:


      (1)upon remand for further proceedings, a trial court may not
      alter the resolution of a legal question previously decided by the
      appellate court in the matter; (2) upon a second appeal, an
      appellate court may not alter the resolution of a legal question
      previously decided by the same appellate court; and (3) upon
      transfer of a matter between trial judges of coordinate jurisdiction,
      the transferee trial court may not alter the resolution of a legal
      question previously decided by the transferor trial court.


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      Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1331
      (1995); accord Zane v. Friends Hosp., 575 Pa. 236, 836 A.2d
      25, 29 (2003).

            Within this doctrine lies the directive that “judges
            sitting on the same court in the same case should not
            overrule each other’s decisions,” otherwise known as
            the “coordinate jurisdiction rule.” Commonwealth v.
            Daniels, 628 Pa. 193, 104 A.3d 267, 278 (2014)....
            Only in exceptional circumstances, such as an
            intervening change in the controlling law, a
            substantial change in the facts or evidence giving rise
            to the dispute in the matter, or where the prior holding
            was clearly erroneous and would create a manifest
            injustice if followed, may the doctrine be disregarded.

            To determine whether the law of the case doctrine
            applies, a court must examine the rulings at issue in
            the context of the procedural posture of the case.

Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 282-83 (Pa.

Super. 2016) (emphasis added) (some internal citations and quotation marks

omitted).

      In the case sub judice, Judge Royer issued no ruling or holding that

implicated the “law of the case” or “coordinate jurisdiction rule,” as she

determined at the outset of the proceeding that her necessary recusal

prohibited her from conducting a hearing on Wife’s PFA petition:

      Judge Royer:     So I’m not hearing evidence. I’m not ruling on
      anything. There is no -- other than approving and signing off on
      your agreement, that’s the extent of my involvement, and the
      case won’t come before me in the future if you have other
      litigation.

Hearing, 3/21/19, at 5.

      Therefore, Judge Royer resolved no legal question put before her by the

parties, but, instead, simply granted the parties’ mutual request to include the

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terms of their present agreement in her order continuing proceedings for a

hearing to a later date.

       Because Judge Royer made no judicial determination after consideration

of facts and pertinent law,2 we conclude there was no prior legal resolution in

the case that Senior Judge Shenkin overruled or altered when he conducted

the May 23, 2019 hearing and entered a final PFA order of May 30, 2019. As

such, we reject Appellant’s “Law of the Case” or “Coordinate Jurisdiction Rule”

argument before us as inapt to the particular facts of this case.

       Alternatively, our review of the record and relevant law also leads us to

agree with Senior Judge Shenkin’s cogent opinion that governing authority

requires first that a court conduct a hearing on the underlying merits of a PFA

petition and the corresponding temporary PFA order before it may modify or

terminate the order. This requirement applies even if the PFA petitioner seeks

to withdraw a temporary order, as Appellee argues Appellant agreed to do.

Specifically, Pennsylvania Rule of Civil Procedure 1901.8(b), Modification or

Discontinuance, provides:

       In cases in which a temporary protection order has been granted,
       a plaintiff in a protection from abuse action who wishes to vacate
       the temporary order and discontinue the action shall either file a
       petition with the court prior to the final order hearing or make the
       request by oral motion at the final order hearing.



____________________________________________


2 Notably, the 3/21/19 transcript shows that no discussion took place
regarding the exception in question, i.e., Appellee’s agreement to withdraw
her petition if Appellant committed no PFA violations in the next 60 days.

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Pa.R.C.P. 1901.8(b). The explanatory comment to Rule 1901.8(b) explains

the rule “provides a uniform process that comports with the requirements of

23 Pa.C.S. §§ 6107(b)(2) (related to hearings)….”

      Section 6107(b)(2), in turn, states, “The court may enter such a

temporary order as it deems necessary to protect the plaintiff or minor

children when it finds they are in immediate and present danger of abuse.

The order shall remain in effect until modified or terminated by the court after

notice and hearing.” (emphasis added).

      Read together, Rule 1901.8(b) and Section 6107(b)(2) provide that a

PFA petitioner may request to withdraw his or her temporary PFA order, but

the order shall remain in effect until a court modifies or terminates it after

providing the parties with notice and a hearing on the matter.        See also

H.M.H. on Behalf of L.M.H. v. D.J.G., 210 A.3d 1045, 1048 (Pa.Super.

2019) (holding “[t]he Pennsylvania Legislature's use of the word “shall” [in 23

Pa.C.S. § 6107] requires that the court hold an evidentiary hearing where the

plaintiff has the opportunity to appear, with counsel, to submit evidence, and

present witnesses in support of the allegation of abuse. [Drew v.]Drew, 870

A.2d [377,] 378 (Pa.Super. 2005); Burke [ex. Rel Burke v. Bauman], 814

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

      Accordingly, we discern no error with Senior Judge Shenkin’s overruling

Appellant’s objection to his conducting a full evidentiary hearing, as he was

constrained by neither Judge Royer’s prior order nor Appellee’s agreement to

do what she could not under the law, i.e., unilaterally vacate her Temporary

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PFA and discontinue her action without a full hearing before the court. Where

Judge Royer specifically indicated she was considering no evidence and

making no rulings, her incorporation of the agreement into the temporary

order did not constitute a requisite hearing as contemplated under the

governing rule and statute.

      Appellant’s second issue is addressed to the sufficiency of the evidence.

Our standard of review is well-settled:

      When a claim is presented on appeal that the evidence was not
      sufficient to support an order of protection from abuse, we review
      the evidence in the light most favorable to the petitioner and
      granting her the benefit of all reasonable inference, determine
      whether the evidence was sufficient to sustain the trial court's
      conclusion by a preponderance of the evidence. This Court defers
      to the credibility determinations of the trial court as to witnesses
      who appeared before it.

[Fonner v.] Fonner, 731 A.2d [160, 161 (Pa.Super. 1998)] (internal citations

omitted).

      “[T]he [PFA] Act does not seek to determine criminal culpability.
      A petitioner is not required to establish abuse occurred beyond a
      reasonable doubt, but only to establish it by a preponderance of
      the evidence.” Snyder v. Snyder, 427 Pa.Super. 494, 629 A.2d
      977, 982 (1993). A “preponderance of the evidence standard is
      defined as the greater weight of the evidence, i.e., to tip a scale
      slightly is the criteria or requirement for preponderance of the
      evidence.” Raker v. Raker, 847 A.2d 720, 724 (Pa.Super. 2004).

K.B. v. Tinsley, 208 A.3d 123, 128 (Pa.Super. 2019).

      Similar to Appellant’s first issue, his sufficiency issue is predicated on

the flawed argument that the scope of relevant and admissible evidence upon

which the Final PFA Order could properly rest should have been restricted to



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evidence of whether Appellant violated the prior temporary order within the

previous 60 days. For the same reasons expressed above, we find Appellant’s

sufficiency claim to be without merit and, therefore, affords him no relief.3

       Order affirmed.

       Judge King joins the memorandum.

     Judge Stabile notes dissent.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/20




____________________________________________


3  Our review of the record shows the court reasonably admitted Appellee’s
relevant testimony that Appellant subjected her to a pattern of domineering
and controlling behavior within the marriage during the lifetime of the parties’
two-year old daughter. Finding Appellee’s testimony “to be generally credible”
and Appellant’s testimony “considerably less so,” the court opines the
evidence was sufficient to support the entry of its order, and we discern no
reason to disturb the court’s credibility determinations in this regard.


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