History of PFA Act (PA)

Original version:  1976

  • Abuse = Only bodily injury (or attempt) & fear by physical menace
  • Standing = only “spouses, persons living as spouses, parents and children, or consanguinity/affinity” – no provisions for not living together
  • Emergency custody provisions included since the beginning
  • Only lasted 12 months max
  • Never required medical or police reports as evidence
  • Plaintiff responsible for filing fees unless they could prove indigence.

Amended 1978 (“35 Pa.S.”): enhanced penalties

  • Standing = former/intimate partners not living together; same sex couples

Amended in 1988

  • Confidentiality
  • allowing DV Advocates in court
  • Abuse includes false imprisonment (6102(a)(3))
  • Court could order weapons relinquished temporarily if they were used/threatened to be used in an incident of violence

Amended in 1994

  • “physical menace” changed to “reasonable fear of bodily injury” (6102(a)(2))
  • State Police Dept required to maintain a statewide registry of PFA orders
  • Abuse includes stalking and other intimidating acts (6102(a)(5))
  • Significant changes to provide courts discretion to order supervised or no custodial access w/ finding of abuse
  • Plaintiff may not be held responsible for any prepaid filing fees; still responsible (until 2006) for costs if PFA petition is dismissed.
  • Can direct immediate return of child to plaintiff if child was forcibly/fraudulently removed
  • Court must consider risk of harm to child as well as to plaintiff in custody provisions
  • Defendant prohibited from acquiring weapons while the order is in effect

Amended in 2000

  • max length expanded from 12 to 18 months

Amended in 2006

  • Max length expanded to 3 years
  • Now specifies “10 business days” between filing and hearing
  • child custody – emergency provisions
  • Prohibition of fees or costs assessed against petitioner for filing
  • NO fees for petitioner for reconsideration or appealing court order
  • Factors that court must evaluate in determining whether certain weapons should be relinquished for the Temporary Order
  • Sweeping changes re. firearms:
    • Relinquish not only weapons used, but ANY weapons
    • Can be issued ex parte if certain conditions are met
    • Firearms can be turned over to a 3rd party with certain limitations

2017 Proposals by PCADV:

Empower courts to issue search and seizure orders for weapons as part of their PFA orders, if there is cause to believe the defendant has weapons and may use them against the victim.

Eliminate the family exemption from background checks for transfers of handguns.

Amend the current provision that allows defendants to place their weapons in the hands of third-party safe keepers. PCADV supports the recommendation that the third-party safekeeping option be abolished completely.

Enhance safety for victims by requiring that sheriffs, deputies or other officers serve protection orders.

Before setting bail, courts should use a risk assessment tool to evaluate potential danger to the victim.

Authorize courts to extend or reinstate an expired PFA order when an incarcerated defendant is about to be released and the court concludes that they pose a continuing threat to the victim.

Encourage local law enforcement to use active GPS monitoring of abusers to provide real-time notice to victims that their abusers are in their vicinity.

Clarify, through statute, the roles of dating violence, teen dating violence and same sex relationships in order to improve interpretation of the law. The Commission notes that these changes are not vital to closing any perceived gaps in the PFA Act.

PFA Case Law Holdings by Topic (PA)

History of PFA Act

PFA Case Law Holdings by Topic
(Links to my briefs of opinions.  Listed chronologically by topic.)

  • Agreement
    • Lee v. Carney [435 PA Super 405 (1994)]: If a consent order has been entered, and there is no fraud or mistake involved, then it is enforceable (even if some elements are odd ones, or burden the plaintiff).
    • Commonwealth of PA v. Nelson (PA Super 1997): A PFA order that is entered into by consent, with no admission or finding of guilt, is still enforceable.
  • Collateral Consequences
    • In re Estate of Cochran [1999 PA Super 242 (Pa. Super. Ct. 1999)]: Spouse’s eviction by PFA order for more than a year constitutes “willful and malicious desertion” which compels forfeiture of election to take spousal share of deceased spouse’s estate.
  • Confidentiality (Privilege)
  • Consanguinity & Affinity (Standing)
    • R.G. v. T.D. [448 PA Super 525 (1996)]: Being former intimate partners is enough for standing.
    • McCance v. McCance [2006 PA Super 263 (Pa. Super. Ct. 2006)]: Sister-in-law of defendant has standing to file for a PFA order because of “affinity.”  (Not defined in Act; use Black’s)
    • Custer v. Cochran [933 A.2d 1050, 2007 PA Super 290 (Pa. Super. Ct. 2007)]: As long as there’s consanguinity, PFA is appropriate, even if not residing in same home. (Domestic relationship not required – residency requirement removed from PFA in 1990.)
    • Scott v. Shay [2007 PA Super 192 (Pa. Super. Ct. 2007)]: Victim of sexual abuse does not have standing to file PFA petition if the relationship is not family/affinity/ intimate partner.
    • Slusser v. DeBoer [2009 PA Super 224 (Pa. Super. Ct. 2009)]: Parties’ shared consanguinity with a child is enough to grant standing for PFA order. (e.g., mother & grandfather)
  • Contempt
    • Dunkelberger v. PA Bd. Of Probation (132 PA Commw. 600 (1991)]: ICC is held to be criminal conviction and therefore a defendant may be recommitted as a parole violator if convicted for an ICC.
    • Commonwealth of PA v. Bortz (PA 2006): Prior ICC constitutes reason to upgrade charge (of stalking) to 3rd-degree felony.
  • Corporal Punishment
    • Miller OBO Walker v. Walker (PA Super 1995): PFA definition of abuse is broader than CPSL, so corporal punishment that does not rise to the level of criminal culpability can still be defined as abuse for PFA purposes.
    • Chronister v. Brenneman [1999 PA Super 284 (Pa. Super. Ct. 1999)]: The law permits parents to administer corporal punishment if it is temporarily painful and does not result in bodily injury.
    • Viruet ex rel. Velasquez v. Cancel [1999 PA Super 53 (Pa. Super. Ct. 1999)]: Corporal punishment should not leave bruises everywhere.
    • Ferri v. Ferri (PA Super 2004): A disciplinary action (like a slap) does not rise to the level of “abuse” if it does not cause bodily injury or the fear thereof.
    • T.W. OBO T.L. v. P.J.L. (PA Super 2008): Abuse is distinguished from corporal punishment by physical marks and reasonable fear.
  •  Criminality of Abuse
    • Boykin v. Brown [2005 PA Super 60 (Pa. Super. Ct. 2005)]: Abuse does not need to rise to the level of criminal acts (i.e., charges by police) to merit the awarding of a PFA order.
  • Custody
    • Rosenberg v. Rosenberg [350 Pa. Super. 268 (1986)]: PFA should not substitute for custody proceedings except for ancillary relief in the short term. (Not a PFA case: this was commentary in a footnote.)
    • Dye for McCoy v. McCoy [423 Pa. Super. 334 (1993)]: PFA should not substitute for custody proceedings in long term, but in the short term its custody protections take precedence.
    • Brooks-Gall v. Gall [2003 PA Super 511 (Pa. Super. Ct. 2003)]: The court may not sua sponte place children into state custody without providing parents due process.
    • Shandra v. Williams [2003 PA Super 85 (Pa. Super. Ct. 2003)]: Trial court should not modify pre-existing child custody order without hearing re. best interests of child.
    • Landis v. Landis [2005 PA Super 78 (Pa. Super. Ct. 2005)]: Court needs to consider all the evidence available in order to fashion custody arrangements in best interest of child.
    • Lawrence v. Bordner [2006 PA Super 246 (Pa. Super. Ct. 2006)]: in OBO case:  if emergency custody arrangement is in child’s best interest, include this in the PFA as temporary relief while custody proceedings are in the works.
  • Definition of Abuse
    • Viruet ex Rel. Velasquez v. Cancel [1999 PA Super 53 (Pa. Super. Ct. 1999)]:  CPSL is narrower than PFA in its definition of abuse:  PFA has five definitions, only one of which is the CPSL one.  PFA is appropriate even if abuse doesn’t rise to the level of “serious bodily injury,” because it is meant to prevent future injury.
  • Dismissal
    • Stamus v. Dutcavich [2007 PA Super 381 (Pa. Super. Ct. 2007)]: Trial court may not dismiss PFA unless petitioned by one or both parties.
  • Divorce Actions (contemporaneous)
    • Laczkowski v. Laczkowski [344 PA Super 154 (1985)]: “[the PFA] statute must be construed in pari materia with the Divorce Code, since they were enacted for different but not incompatible purposes.”  (IOW, can’t claim that one preempts the other.)
  • Double Jeopardy
    • Commonwealth of PA v. Zerphy (PA Sup 1984): ICC can be charged separately from criminal charges; not DJ if victim is not the protected party of PFA order.
    • Commonwealth of PA v. Decker (PA Sup 1995): Charges for same conduct trigger double jeopardy protections.  (e.g., simple assault being an element of both the ICC & criminal charge)
    • Commonwealth of PA v. Yerby (PA 1996): If one charge is a lesser offense included in the other, double jeopardy protections attach.  But if criminal charge was not included in ICC, there’s no DJ problem.
    • Leonard v. Smith [454 PA Super 51 (1996)]: ICC can follow criminal conviction w/o DJ if elements of each are distinct.  (e.g., assault/trespass – harassment/stalking)
  • Duration of PFA
    • Holderman v. Hagner [2000 PA Super 292 (Pa. Super. Ct. 2000)]: Expiration date should be measured from date of Final Order, not date of temporary order.
  • Evidence of Prior Bad Acts / Past Abuse
    • Snyder v. Snyder (PA Super 1993): At the hearing, a plaintiff is not limited to the specific allegations written in the petition.
    • Commonwealth of PA v. Barger (PA Sup 1999): The fact of prior bad acts established the reason why the victim offered no physical resistance and delayed reporting incidents.
    • Commonwealth of PA v. Jackson (PA Sup 2006): Evidence of prior bad acts admissible in order to establish “the chain or sequence of events which formed the history of the case, is part of the natural development of the case, and demonstrates Appellant’s motive, malice, intent, and ill-will toward victim.”
  • Evidentiary Hearings Mandatory
    • In re. Penny R. [353 PA Super 70 (1986)]: Court could not sua sponte vacate an earlier order allowing visitation without evidentiary hearing.  (but see Dissent.)
    • Burke v. Bauman [2002 PA Super 396 (Pa. Super. Ct. 2002)]: “within 10 days of filing a hearing SHALL be held” means this is mandatory.
    • Drew v. Drew [2005 PA Super 87 (Pa. Super. Ct. 2005)]: Evidentiary hearing mandated by PFA Act.
    • Lanza v Simconis [2006 PA Super 369 (Pa. Super. Ct. 2006)]: Evidentiary hearing mandated by PFA Act. Plaintiff must have opportunity for counsel, witnesses, cross-X.
  • Ex parte petition hearing
    • Lanza v Simconis[2006 PA Super 369 (Pa. Super. Ct. 2006)]: Not dealt with here, because appellant (plaintiff) did not preserve issue on appeal.  But suggestive that the petition hearing must be ex parte – see also 23 Pa. C.S.A. Section 6107(a)(1) (“shall”).
    • Ferko-Fox v. Fox [68 A.3d 917 (Pa. Super. Ct. 2013)]: The ex parte hearing ought to be conducted in person; in camera review of petition is not sufficient. (But see Ott, dissent) [Originated with Judge Reich, LCCCP]
  • Expungement
    • P.E.S. v K.L. [720 A.2d 487 (Pa. Super. Ct. 1998)]: For the sake of justice, defendant has right to have record expunged if temporary order was not granted and case was dismissed.
    • Carlacci v. Mazaleski [568 Pa. 471 (Pa. 2002)]: Defendant has a right to petition for expungement of PFA record if temporary PFA has been dismissed.
    • Commonwealth of PA v. Charnik (PA Sup 2006): A defendant is not entitled to seek expungement for a final PFA order after a hearing.
  • Extension of PFA
    • Commonwealth of PA v. Snell (PA Sup 1999): PFA Act does not require a separate civil trial to extend the PFA after an ICC conviction.
    • Kuhlmeier v. Kuhlmeier [2003 PA Super 56 (Pa. Super. Ct. 2003)]: Still possible, even when scheduling goddess has delayed next court date till after original order expired.
  • Fees
    • Krassnoski v. Rosey [454 PA Super. 78 (Pa. Super. Ct. 1996)]: Trial court may assess reasonable counsel fees on the unsuccessful defendant, even in cases where plaintiff has been represented free of charge.
    • Egelman v. Egelman [1999 PA Super 57 (Pa. Super. Ct. 1999)]: No financial restrictions or costs are to be placed on the Plaintiff, either upon filing or afterward (with the exception of costs assessed for petitioning in bad faith). Even if defendant prevails, attorney’s fees will not be assessed to the Plaintiff.
    • Viruet ex rel. Velasquez v. Cancel [1999 PA Super 53 (Pa. Super. Ct. 1999)]:  Court may not impose a prepaid bond requirement even if they feel a plaintiff has filed frivolously.  (In 2006, all fees will be waived for plaintiff.)
    • Raker v. Raker [2004 PA Super 107 (Pa. Super. Ct. 2004)]: Fees assessed against defendant after hearing.
  • Guardian ad litem
    • DeHaas v. DeHaas (PA Sup 1998): Guardian ad litem not required by PFA Act (this is a procedural requirement of CPSL)
  • Hearings
    • Commonwealth of PA v. Ortiz (PA Sup 2002): Statute says hearing should be SCHEDULED w/in 10 days of ICC charges, not that it should be HELD w/in 10 days.
  • Insufficient Evidence
    • D.H. v. B.O. [1999 PA Super 149 (Pa. Super. Ct. 1999)]: No actual threats of bodily injury means no PFA order.
    • Raker v. Raker [2004 PA Super 107 (Pa. Super. Ct. 2004)]: For Plaintiff to prevail in PFA hearing, need only establish preponderance of the evidence.
    • Hood-O’Hara v. Wills [2005 PA Super 145 (Pa. Super. Ct. 2005)]: Police reports and medical records are not necessary for establishing the need for a PFA.
    • Karch v. Karch [2005 PA Super 342 (Pa. Super. Ct. 2005)]: Medical/police report is not needed to establish credibility.
    • Scott v. Shay [2007 PA Super 192 (Pa. Super. Ct. 2007)]: If there is no “course of conduct” (pattern of actions) present, the evidence is insufficient.
  • Intent/Volition
    • Chronister v. Brenneman [1999 PA Super 284 (Pa. Super. Ct. 1999)]: In corporal punishment case, intent was an important component in deciding that this was not abuse.
    • Commonwealth v. Haigh (PA Sup 2005): Commonwealth must prove that defendant acted with “wrongful intent” in violating PFA for ICC conviction.
    • Commonwealth v. Brumbaugh (PA Sup 2007): Violation of the PFA was clearly volitional (knowingly made) – wrongful intent sealed the ICC charge (4th burden)
  • Jurisdiction
    • N.T. v. F.F. (PA Sup 2015): Minimal contact with the State of PA has to be established before a PFA can be sought against a nonresident of PA.
  • Jury Trials
    • Eichenlaub v. Eichenlaub [340 Pa. Super. 552 (Pa. Super. Ct. 1985)]: PFA law provides that defendant in an ICC case has no right to a jury trial. (Expediency; penalty not > 6 months incarc.)
    • Commonwealth of PA v. Burton (PA Sup 1993): general right to trial by jury (de novo) is superseded by the abolition of such a right in the PFA Act context.
  • Minor Defendant
    • Varner v. Holley [2004 PA Super 233 (Pa. Super. Ct. 2004)]: Under the PFA Act a minor defendant is not entitled to court-ordered counsel, but he is entitled to an interested adult to defend on his behalf.
  • Mutual Orders
    • Heard v. Heard (PA Sup 1992): lower court has no jurisdiction to issue sua sponte orders without the parties’ filing of petitions.  (At this time this was not specifically written into the Act:  now @ 6108(c).)
    • McKelvey v. McKelvey ([2001 PA Super 103 (Pa. Super. Ct. 2001)]: A sua sponte mutual protection order entered by the trial court is outside the bounds of the PFA Act.
  • Post-Sentence Motions
    • Commonwealth v. Moore (PA Sup 2009): Judicial economy is preferred when filing post-sentencing motion for PFA-ICCs (short sentence might expire before a regular motion gets through the red tape)
  • Reasonable Fear
    • Fonner v. Fonner [1999 PA Super 122 (Pa. Super. Ct. 1999)]:  Physical contact is not a prerequisite for a finding of abuse.  A victim need not wait for abuse to occur if there is reasonable fear that it will.
    • Raker v. Raker [2004 PA Super 107 (Pa. Super. Ct. 2004)]: Reasonable fear of bodily injury without actual physical injury occurring.
    • Thompson v. Thompson (PA Sup 2008): Examples of reasonable fear of bodily injury, even if these specific words were not used by witnesses.
    • T.K. v. A.Z. (PA Sup 2017): Plaintiff in PFA case need not use the word “fear” to describe experiences of anxiety for her physical safety.
  • Relief
    • Gerace v. Gerace [429 Pa. Super. 203 (Pa. Super. Ct. 1993)]: PFA Act provides for broad relief, including recovery of property and costs.
    • Snyder v. Snyder (PA Sup 1993): Remedies are at the trial court’s discretion, including exclusion of the abusive person from a jointly-owned residence.
  • Residence, Eviction
    • Commonwealth of PA v. Majeed (PA 1997): Under PFA order of eviction, a defendant relinquishes license or privilege to enter residence, even though he owned the property.
  • Self Defense
    • Commonwealth of PA v. Stonehouse (PA 1989): Expert testimony on battered woman syndrome should be presented to a jury in a murder trial.
    • Commonwealth of PA v. Miller (PA Sup 1993): Consideration of “battered woman syndrome” for plea of self-defense may be warranted (dicta)
  •  Service
    • Commonwealth v. Stallworth (PA 2001): If PFA has not yet been served by the time crime is committed, it cannot be incorporated into sentencing as “aggravating circumstances.”
    • Commonwealth v. Padilla (PA sup 2005): Verbal notice of service over the phone by police officer was sufficient to comply with the service requirements of due process.
  •  Stalking
    • R.G. v. T.D. (PA Sup 1996): Stalking as a course of deliberate conduct is enough to meet the definition of “abuse” if plaintiff is in fear for her safety.
    • Commonwealth v. Leach (PA Sup 1999): Subsequent acts are necessary to support a “course of conduct” called stalking; but each of the additional acts are, by definition, stalkings and can be the basis for an independent charge.
    • Commonwealth of PA v. Abed (PA Sup 2010): A conviction of stalking does not require that there be physical contact; threats and fear for personal safety are enough.
    • T.K. v. A.Z. (PA Sup 2017): Stalking is sufficient to meet definition of abuse.  (i.e., it’s not just “rude,” it’s “abusive.”)
  •  Verbal/Nonverbal Threats
    • R.G. v. T.D. (PA Sup 1996): Phone and email threats are sufficient to place a person in reasonable fear of imminent bodily injury.
    • Burke v. Bauman [2002 PA Super 396 (Pa. Super. Ct. 2002)]: Phone threats can be sufficient to place a person in reasonable fear of imminent bodily injury.
    • Karch v. Karch [2005 PA Super 342 (Pa. Super. Ct. 2005)]: Evidence of threat is more than sufficient for PFA.
    • Mescanti v. Mescanti [2008 PA Super 201 (Pa. Super. Ct. 2008)]: Nonverbal evidence (e.g., sound of guns being cocked) enough to establish reasonable fear.
  • Witnesses
    • Coda v. Coda [446 Pa. Super. 296 (Pa. Super. Ct. 1995)]: A continuance may be granted to subpoena a material witness if the witness’s testimony may affect the outcome of the hearing.
    • K.D. v J.D. (PA Sup 1997): Hearsay testimony (e.g., from CYS/therapist) of child witness cannot be admitted in a PFA hearing (different standards than child abuse hearing).