May 21, 2013

Superior Court Makes Changes to PFA Procedure

The Pennsylvania Superior Court’s recent ruling will change the procedure necessary to obtain a temporary Protection from Abuse (“PFA”) Order under the Protection from Abuse Act in Bucks County. The Superior Court, in Fox v. Fox, determined a temporary PFA Order in Lancaster County was improperly granted against a defendant when it was entered after a review of the verified written petition only. The defendant contended that the trial court violated his due process rights by not holding an ex parte hearing on the allegations raised in the petition to determine whether they were sufficient to establish an immediate and present danger of abuse.

The Protection from Abuse Act (23 Pa.C.S. § 6101 et seq.) requires an ex parte hearing on petitions for temporary PFA orders. 23 Pa.C.S. § 6107(b). Therefore, the trial court’s “in camera” review, which has been standard practice in Bucks County courts, was insufficient under the statute to support the granting of a temporary PFA order that excluded the defendant from the home. The Superior Court concluded that although temporary PFA orders are intended to protect individuals from immediate danger, the protection cannot come at the expense of a defendant’s due process rights. The process of appearing in court and swearing to testify truthfully would cause a plaintiff to think twice about filing their petition with exaggerated events, and suspect or fraudulent allegations. Further, a trial court conducting an in-person examination of the petition and its allegations would be in a better position to determine the validity of claims and observe the presence or absence of signs of physical violence.

The Bucks County Court of Common Pleas has already begun holding ex parte hearings for petitions filed since the ruling to determine the veracity and severity of the allegations raised in a PFA petition. The hearings will provide the court with the enhanced ability to protect petitioners in need while also determining whether plaintiffs have an improper motive, are seeking retaliation, or are attempting to gain an advantage in another proceeding.

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