J-S46029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

AURORA ALICIA STUSKI-COSTELLO                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

LOUISE CATHERINE BENTIVEGNA

                          Appellant                 No. 3524 EDA 2014


                 Appeal from the Order Entered July 3, 2014
            In the Court of Common Pleas of Montgomery County
                     Civil Division at No(s): 2014-18868


BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 16, 2015

      Appellant, Louise     Catherine Bentivegna, appeals from the final

protection from abuse (PFA) order entered against her on July 3, 2014, as

made final by the denial of reconsideration on November 14, 2014. Upon

review, we affirm.

      The trial court set forth the applicable facts and procedural history of

this case as follows:

        On June 23, 2014, [Appellant] filed a [PFA] petition []
        against her daughter, Mary M. Stuski, her [other] daughter,
        Aurora A. Stuski-Costello [(Stuski-Costello)], and her
        grandson, Galen I. Stuski. After an ex parte hearing, a
        temporary PFA was issued to [Appellant]. On June 26,
        2014, [Stuski-Costello] filed a [PFA] petition [] against her
        [m]other, [Appellant]. On that same date, the Honorable
        Gail Weilheimer [] granted [Stuski-Costello’s] petition for a
        temporary PFA. All petitions were consolidated for […] a
        final hearing on July 3, 2014 before [the Honorable Steven
        C. Tolliver]. In said hearing, all parties, with the exception
        of Mary M. Stuski, were represented by counsel and all
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       parties [were] given the opportunity to present evidence in
       support of their respective positions. At the conclusion of
       the hearing, based upon evidence and testimony adduced
       during the hearing, [the trial court] denied the final [PFA]
       petitions filed by [Appellant] and granted [Stuski-Costello’s]
       request for a final PFA against [Appellant]. The final PFA,
       which remains in effect until July 2, 2017, directs that
       [Appellant] ‘shall not abuse, harass, stalk or threaten’
       [Stuski-Costello], and that [Appellant] ‘is prohibited from
       possessing, transferring or acquiring any firearms for the
       duration of the order.’

       On July 29, 2014, [Appellant] filed a pro se petition for
       reconsideration of the final PFA order arguing, inter alia,
       that the final PFA was only issued because she owned guns
       and made threats with them in the past.             [Appellant]
       believes the final PFA was granted in error as [Appellant’s]
       behavior thirty (30) years ago does not constitute a current
       reasonable fear of bodily harm. On August 1, 2014, [the
       trial court] granted [Appellant’s] petition for reconsideration
       and scheduled oral argument on the matter. Subsequently,
       [Appellant] retained new counsel in the matter. After two
       (2) continuances, on October 7, 2014, [Stuski-Costello] and
       her counsel and [Appellant] with new counsel appeared
       before [the trial court] for oral argument on [Appellant’s]
       pro se petition for reconsideration.

       During the argument, [Appellant’s] new counsel requested
       leave to file an amended petition for reconsideration to raise
       a claim for ineffective assistance of counsel. On October 7,
       2014, [the trial court] issued an order granting [Appellant’s]
       request for leave, directing the parties to submit briefs on
       the issue of whether ineffective assistance of counsel is a
       basis for granting reconsideration of a PFA order.

       On October 10, 2014, [Appellant] filed the amended petition
       for reconsideration of the final PFA that is currently [under
       review]. In said petition, [Appellant] state[d] that although
       the issues in the original reconsideration petition lack[ed]
       merit, [Appellant] believe[d] that she ha[d] a meritorious
       ineffective assistance of counsel claim.         Accordingly,
       [Appellant sought] to vacate [the] final PFA and convene a
       de novo hearing before [the trial court] on the basis that


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         [Appellant’s] counsel during the final PFA hearing was
         ineffective.

         On October 28, 2014, [Appellant] filed a brief in support of
         [her] amended petition for reconsideration of the final PFA.
         On that same date, [Stuski-Costello] filed an answer to the
         amended petition for reconsideration and a memorandum of
         law in opposition to [Appellant’s] amended petition for
         reconsideration.

Trial Court Opinion, 11/17/2014, at 1–3 (original brackets, superfluous

capitalization, and footnotes omitted).

       The trial court held oral argument and denied relief by order filed on

November 14, 2014 and entered a final PFA order.            This timely appeal

resulted.1

       On appeal, Appellant presents the following issues for our review:

         [1.]        Did the lower court err in dismissing Appellant’s
                     amended petition for reconsideration of [the] final
                     PFA order, where Appellant asserted [her] right to
                     effective counsel on the basis of procedural due
                     process protections guaranteed by the Constitution
                     of the United States and the Commonwealth of
                     Pennsylvania, and where there was a substantial
                     liberty interest at stake?

____________________________________________


1
   Appellant filed a notice of appeal on December 12, 2014 within 30 days
from the date of the denial of reconsideration.      Because the trial court
expressly granted reconsideration within the time allotted for filing an appeal
from the entry of the final PFA order, the time for taking the appeal was
tolled. See Cheatem v. Temple University Hospital, 743 A.2d 518 (Pa.
Super. 1999). Thus, the appeal is properly before us. On December 15,
2014, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on January 5, 2015. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on January 9, 2015.



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        [2.]      Did the lower court err in dismissing Appellant’s
                  amended petition for reconsideration of [the] final
                  PFA order, where Appellant asserted that [Stuski-
                  Costello] had provided insufficient relevant and
                  admissible evidence upon which to support the
                  issuance of a final [PFA] order?

Appellant’s Brief at 4 (superfluous capitalization omitted).

      In her first issue presented, Appellant avers the trial court erred by

denying reconsideration of her claim that she was denied the effective

assistance of counsel, in violation of her procedural due process rights.

Appellant argues that counsel was ineffective in failing to advise her that she

would have to surrender her firearms if the trial court granted her daughter’s

cross-petition for a PFA order.   Id. at 12-13.    Appellant claims there is a

right to effective counsel in certain types of civil cases where an individual

faces deprivation of a fundamental or substantial right or where a liberty

interest is imperiled. Id. at 13-14. Appellant likens her interest in retaining

her firearms to paternity rights and asset forfeiture cases.     Id. at 15-17.

She claims the final PFA deprives her of the right to bear arms under the

United States and Pennsylvania Constitutions. Id. at 17-19.

      “When reviewing a trial court's actions in a PFA case, the appellate

court is to review the presiding trial court's legal conclusions for an error of

law or abuse of discretion.” Ferko–Fox v. Fox, 68 A.3d 917, 920 (Pa.

Super. 2013).

      Pursuant to 23 Pa.C.S.A. § 6107, procedural due process in the

context of the PFA Act requires that:


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        […] The court shall, at the time the defendant is given
        notice of the [PFA] hearing, advise the defendant of the
        right to be represented by counsel, of the possibility that
        any firearm, other weapon or ammunition owned and any
        firearm license possessed may be ordered temporarily
        relinquished, of the options for relinquishment of a firearm
        pursuant to this chapter, of the possibility that Federal law
        may prohibit the possession of firearms, including an
        explanation of 18 U.S.C. § 922(g)(8) (relating to unlawful
        acts), and that any protection order granted by a court may
        be considered in any subsequent proceedings under this
        title. This notice shall be printed and delivered in a manner
        which easily attracts attention to its content and shall
        specify that child custody is one of the proceedings where
        prior protection orders may be considered.

23 Pa.C.S.A. § 6107(a). Because there is no dispute that Appellant received

notice and an opportunity to be heard, we turn now to consider Appellant’s

claim that the trial court’s refusal to grant reconsideration wrongly deprived

her right to effective assistance of counsel.

      The cases in which the right to effective counsel has been recognized

fall into one of two categories:

        (1) cases in which the right to counsel is statutorily
        mandated; or (2) cases in which the defendant could be
        deprived of a fundamental or substantial right under the
        United States or Pennsylvania Constitutions. Where the
        appointment of counsel is legislatively created, the courts
        have construed this right to necessarily include the right to
        effective and competent representation since the right to
        counsel would otherwise be rendered meaningless.

Weir v. Weir, 631 A.2d 650, 656-657 (Pa. Super. 1993).

      With regard to the right to counsel in PFA proceedings, this Court has

previously determined:




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        Unlike cases arising under the Juvenile Act or cases
        concerning involuntary commitment, there is no legislatively
        created right to court-appointed counsel in PFA proceedings.
        Rather, the PFA only requires that the court advise a
        defendant of the right to be represented at the hearing by
        counsel. See 23 Pa.C.S.A. § 6107(a). The right to be
        represented by counsel cannot be equated with the right to
        receive court-appointed counsel. The right to be
        represented by counsel in civil proceedings is one accorded
        to all individuals. However, all civil litigants do not have the
        right to court-appointed counsel.

Id. at 657 (brackets omitted). “The Weir court held that a PFA action is not

the type of proceeding which involves the deprivation of a constitutional

right so as to require the appointment of counsel.” Varner v. Holley, 854

A.2d 520, 523 (Pa. Super. 2004).

     It is also well settled that there is no recognized right to be

represented by appointed counsel in a civil case. May v. Sharon, 546 A.2d

1256 (Pa. Super. 1988). We have explained:

        While it is true that in some instances counsel will be
        appointed for a plaintiff in a civil action, generally it is a
        situation involving broad policy considerations implicating a
        state interest of a civil rights nature such as a fair housing
        violation, sexual or other job discrimination or where liberty
        interests are implicated. The state has reasonably adjusted
        to these necessities by providing legal agencies to fulfill due
        process requirements, which will assist indigent persons
        who are wronged, or the courts have called upon pro bono
        services of the bar associations absent public resources.
        Each class of case and in some respects each case is
        scrutinized to determine if the right to counsel is required
        under the due process provisions of federal and state
        constitutions. The requirements are more clearly stated and
        more generally applicable when a party is a defendant in
        certain civil actions, rather than a plaintiff. It is also clear
        that classification of a case as civil as opposed to criminal
        will not be determinative, but rather, whether the action will


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        be perceived as ultimately depriving a person of higher
        liberty interests.

Id. at 1258.

      In determining whether a litigant was afforded due process when a

fundamental right is implicated, courts conduct a balancing test focusing on

the following three factors:

        First, the private interest that will be affected by the official
        action; second, the risk of an erroneous deprivation of such
        interest through the procedures used, and the probable
        value, if any, of additional or substitute procedural
        safeguards; and finally, the Government's interest,
        including the function involved and the fiscal and
        administrative burdens that the additional or substitute
        procedural requirement would entail.

Id., citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

      As the trial court noted, the purpose of the PFA Act is to protect

victims of domestic violence. Trial Court Opinion, 11/17/2014, at 7, citing

Ferko-Fox v. Fox, 68 A.3d at 921. This Court has explained, “[t]o meet

the special exigencies of abuse cases, acceptable procedures have been

fashioned which suspend, temporarily, the due process rights of the alleged

abuser and provid[e] for summary procedures for implementation of orders.”

Ferko-Fox v. Fox, 68 A.3d at 921.         As such, the trial court herein was

“confident that the legislature, in drafting the PFA [Act] fully considered the

private interests of the alleged abuser and the alleged victim, the risk of

erroneous deprivation of [Appellant’s possession of firearms] with the

procedures utilized in PFA proceedings, and the government’s interest in

preventing domestic violence[.]” Trial Court Opinion, 11/17/2014, at 8. The


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trial court determined that due process in a PFA proceeding requires notice

of the proceeding, notice that the defendant may have counsel present, and

the opportunity of the defendant to present and cross-examine witnesses.

Id. There is no dispute that Appellant received those due process rights.

      We agree with the trial court’s assessment. Under the PFA Act, there

is no right to counsel. Thus, having no right to the appointment of counsel

in a PFA proceeding, there can be no derivative ineffective assistance claim.

See Commonwealth v. Wideman, 306 A.2d 894, 896 (Pa. 1973) (The

right to representation by counsel to be meaningful necessarily includes the

right to effective representation), cf. Anders v. California, 386 U.S. 738,

(1967) and Powell v. Alabama, 287 U.S. 45 (1932).          Clearly, under the

PFA Act, there are competing interests between abuser and victims at play

and the right to bear arms must yield to protecting victims from violence.

Further, we note, in the context of a PFA statute, that the deprivation of

one’s right to possess firearms is temporary, not permanent, and ends once

the duration of the final order concludes. See 23 Pa.C.S.A. § 6108.1 (“Any

court order requiring the relinquishment of firearms, other weapons or

ammunition shall provide for the return of the relinquished firearms, other

weapons or ammunition to the defendant upon expiration of the order or

dismissal of a petition for a protection from abuse order.”). We also note

that Appellant faces the potential for incarceration only if she violates the

PFA order. Moreover, Appellant is not without a remedy since she is free to

pursue a claim of civil liability as a result of professional negligence. Given

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the nature of the PFA and the harm alleged, we believe this remedy is better

tailored to vindicate Appellant’s concerns with counsel’s performance.       As

such, the trial court did not abuse its discretion or commit an error of law in

denying Appellant relief on her ineffective assistance of counsel claim.

Hence, Appellant’s first issue lacks merit.

      Next, Appellant contends Stuski-Costello failed to present sufficient

evidence to support the trial court’s grant of her PFA petition. Appellant’s

Brief at 26-28. Appellant argues that the trial court relied upon comments

she made to Stuski-Costello in the 1980s. Id. at 27. More specifically, she

claims Stuski-Costello “relied heavily upon an event in which [] Appellant, 30

years prior, had a gun on a table and stated, ‘I don’t know whether to shoot

you or myself’ in order to establish prior incidents of abuse.”     Id.    Thus,

Appellant maintains the event was so distant in time the trial court should

have disregarded it. Id. at 27-28.

      Our standard of review is well-settled:

        When a claim is presented on appeal that the evidence is
        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[s], 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. Furthermore, the preponderance of the
        evidence 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.

Ferko-Fox v. Fox, 68 A.3d at 926-927.


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      We have held:

        In the context of a PFA case, the court's objective is to
        determine whether the victim is in reasonable fear of
        imminent serious bodily injury. The intent of the alleged
        abuser is of no moment.

                             *         *           *

        [I]n light of the purpose of the Act to prevent imminent
        harm to abused persons, some flexibility must be allowed in
        the admission of evidence relating to past acts of abuse.
        [For example, this Court has] held that it was not an abuse
        of discretion for the court to consider evidence of abuse that
        occurred six years earlier. [We] reasoned that:

            In light of the protective purposes of the act, it was
            within the trial court's discretion to hear any relevant
            evidence that would assist it in its obligation to
            assess the [] entitlement to and need for a
            protection from abuse order. If the trial court found
            the testimony to involve events too distant in time to
            possess great relevance to the case, it could
            certainly have assigned less weight to the testimony.
            However, it was not an abuse of discretion for the
            trial court to hear the evidence. Past abusive conduct
            on [an] appellant's part [is] a crucial inquiry
            necessary for entry of a proper order.

Buchhalter v. Buchhalter, 959 A.2d 1260, 1263-1264 (Pa. Super. 2008)

(internal citations, ellipsis, and parentheticals omitted).

      Here, the trial court allowed the evidence pertaining to the past threat

of violence “to assist it in its obligation to assess [Stuski-Costello’s] need for

protection of abuse.” Trial Court Opinion, 1/9/2015, at 10. The trial court

“did not assign great weight to the testimony” and “considered the totality of

the circumstances, including [Stuski-Costello’s] testimony regarding more



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recent threats made by Appellant, and [Stuski-Costello’s] disposition and

credibility during her testimony[.]” Id.

      Upon review of the record, we find no error. Stuski-Costello testified

that Appellant recently harassed her while she was managing a rental

property. N.T., 7/3/2014, at 134-135. Stuski-Costello stated that Appellant

blocked access to her vehicle and because Appellant had already obtained a

PFA, Stuski-Costello did not feel free to leave.           Id. at 134-135, 145-146.

She felt that Appellant was provoking her.               Id. at 146.     Stuski-Costello

locked herself in her car and waited until she thought Appellant drove off.

Id. at 135-136. While driving home, Stuski-Costello saw Appellant following

her despite the fact that Appellant lived in a different direction. Id. Stuski-

Costello testified that she was in fear.         Id. at 136.      Later, Appellant told

Stuski-Costello’s sister that “she and [Stuski-Costello] were both dead and

[Appellant] would see to it.”         Id. at 138.        Stuski-Costello testified that

Appellant owned guns and she has been afraid of her mother her entire life.

Id.

      We   will   not   usurp   the    trial   court’s     credibility   determinations.

Moreover, while there was testimony regarding the aforementioned past

incident, the trial court did not render its decision solely upon it. There was

sufficient evidence of present events of abuse and the trial court did not err

in granting Stuski-Costello’s PFA petition.         Accordingly, Appellant’s second

issue is without merit.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2015




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