Richardson, D. v. Richardson, C. ( 2015 )


Menu:
  • J-S69006-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    DAVID RICHARDSON                                 IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    CATHERINE RICHARDSON
    Appellant                    No. 3477 EDA 2014
    Appeal from the Order Entered November 14, 2014
    In the Court of Common Pleas of Montgomery County
    Civil Division at No(s): 2014-29238
    BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.
    MEMORANDUM BY GANTMAN, P.J.:                     FILED DECEMBER 16, 2015
    Appellant, Catherine Richardson, appeals from the order entered in the
    Montgomery County Court of Common Pleas, granting final Protection from
    Abuse (“PFA”) in favor of Appellee, David Richardson.         For the following
    reasons, we vacate the final PFA order, direct reinstatement of the
    temporary PFA order, and remand for further proceedings.
    In its opinion, the trial court set forth the relevant facts and procedural
    history of this case as follows:
    On October 30, 2014, Appellee filed a [PFA petition]
    against Appellant on behalf of himself. In said petition
    Appellee avers that on October 28, 2014, Appellant
    repeatedly called his cell phone and office, and eventually
    got him on the phone to tell him…“she was coming to [his]
    home and someone was going to beat [him] up and get
    inside of [his] home. On the same date, the Honorable
    Patricia E. Coonahan, issued a temporary PFA Order, which
    directed that Appellant “shall not abuse, harass, stalk, or
    J-S69006-15
    threaten,” or have any contact with Appellee. In addition,
    a Notice of Hearing was issued scheduling a hearing on the
    PFA petition for November 6, 2014, before the
    undersigned.
    On October 31, 2014, Appellant was personally served with
    a copy of the PFA petition, the temporary PFA Order, and
    the Notice of Hearing that indicated a hearing would be
    held on November 6, 2014.
    On November 6, 2014, Appellee appeared for the hearing,
    but Appellant failed to appear.       After verifying that
    Appellant had not requested any continuance, and had
    received proper service of the Notice of Hearing, this
    [c]ourt conducted a hearing in Appellant’s absence.
    At the conclusion of the hearing, this [c]ourt issued a final
    PFA Order (“Final PFA”) on behalf of Appellee which directs
    that Appellant, for a period of one (1) year, shall not
    contact Appellee, his wife, or his stepdaughter, and further
    directs that Appellant “shall not abuse, stalk, harass,
    threaten or attempt to use physical force that would
    reasonably be expected to cause bodily injury to Appellee.
    The Final PFA also directs Appellant to undergo alcohol
    rehabilitation.
    On December 2, 2014, Appellant filed an Emergency
    Motion for Reconsideration of the November 6, 2014 Final
    PFA Order. In said Motion, Appellant averred that she had
    every intention to appear on November 6, 2014, to defend
    against the PFA petition, but was unable to attend because
    she was involuntarily committed to the Montgomery
    County Services Building 50 (“Building 50”) pursuant to
    section 302 of the Mental Health Procedures Act of 1976.[1]
    Appellant sought to vacate the Final PFA Order, reinstate
    the temporary PFA Order, and reschedule the hearing so
    that she could present a defense to the PFA petition. In an
    abundance of caution to preserve her appeal rights, on
    December 5, 2014, Appellant also filed a Notice of Appeal
    from the November 6, 2014 Final PFA Order.
    ____________________________________________
    1
    50 P.S. § 7302.
    -2-
    J-S69006-15
    On December 17, 2014, this [c]ourt issued an Order,
    which purportedly granted Appellant’s Emergency Motion
    for Reconsideration, vacated the November 6, 2014 Final
    PFA, reinstated the October 30, 2014 temporary PFA, and
    scheduled a new hearing date for January 6, 2015.
    However, on January 9, 2015, the Superior Court of
    Pennsylvania, issued a Per Curiam Order, which informed
    this [c]ourt that because this [c]ourt did not grant
    Appellant’s Motion for Reconsideration until December 17,
    2014, which was two days after the thirty day window for
    reconsideration, this [c]ourt was without jurisdiction to
    enter the December 17, 2014 Order. Accordingly, the
    Final PFA Order was properly before the Superior Court on
    appeal.
    On January 21, 2015, Appellant filed a Response to the
    Superior Court’s January 9, 2015 Order and an Application
    for Remand.      In said Response/Application, Appellant
    requests that the matter be remanded back to this [c]ourt
    so that a hearing can be held, as outlined in the December
    17, 2014 Order.
    (Trial Court Opinion, filed April 10, 2015, at 1-3) (internal footnotes
    omitted).
    Appellant raises the following issue on appeal:
    WAS APPELLANT DENIED PROCEDURAL DUE PROCESS
    WHEN TRIAL WAS CONDUCTED IN HER ABSENCE WHILE
    SHE REMAINED INVOLUNTARILY CIVILLY COMMITTED
    PURSUANT TO SECTION 302 OF THE MENTAL HEALTH
    PROCEDURE[S] ACT OF 1976[,] 50 P.S. § 7302[?]
    (Appellant’s Brief at 4).
    Appellant argues she was denied due process when the Court of
    Common Pleas of Montgomery County proceeded with trial in her absence.
    Specifically, Appellant contends that on the date Appellee’s PFA petition was
    -3-
    J-S69006-15
    heard, Appellant was rendered unavailable due to her involuntary civil
    commitment, pursuant to Section 302 of the Mental Health Procedure Act of
    1976.      Because Appellant was literally rendered unavailable for trial,
    Appellant concludes we should remand for further proceedings. We agree.
    When an appellant files a motion for reconsideration of a final order,
    she must file the notice of appeal simultaneously to assure the availability of
    appellate review should the trial court deny the petition or fail to grant it
    “expressly” within the 30-day appeal period. See Sass v. AmTrust Bank,
    
    74 A.3d 1054
    , 1062 (Pa.Super. 2013), appeal denied, 
    624 Pa. 675
    , 
    85 A.3d 484
     (2014) (citing Cheathem v. Temple University Hosp., 
    743 A.2d 518
    ,
    521 (Pa.Super. 1999)).      In other words, the mere filing of a motion for
    reconsideration does not toll the 30-day appeal period:
    The Rules of Appellate Procedure recognize a single
    method to toll the appeal period which counsel throughout
    this Commonwealth have consummated through decades
    of practice: “[T]he 30-day period may only be tolled if
    that court enters an order ‘expressly granting’
    reconsideration within 30 days of the final order.” “There
    is no exception to this Rule, which identifies the only form
    of stay allowed. A customary order and rule to show cause
    fixing a briefing schedule and/or hearing date, or any other
    order except for one “expressly granting” reconsideration,
    is inadequate.”         Consequently, a party seeking
    reconsideration     must    file  the     notice  of  appeal
    simultaneously to assure the availability of appellate
    review should the trial court deny the petition or fail to
    grant it “expressly” within that critical 30–day window.
    Sass, supra (internal citations omitted).      See also Commonwealth v.
    Moir, 
    766 A.2d 1253
    , 1254 (Pa.Super. 2000) (holding court must expressly
    -4-
    J-S69006-15
    grant reconsideration within 30-day appeal period; court’s order to show
    cause and setting hearing date does not expressly grant reconsideration;
    filing protective notice of appeal is necessary to preserve appellate rights).
    For a PFA hearing to comport with due process, the parties must, at a
    minimum, have the opportunity to present witnesses on their own behalf,
    testify on their own behalf, and cross-examine the opposing party and
    his/her witnesses. Leshko v. Leshko, 
    833 A.2d 790
     (Pa.Super. 2003).
    Instantly, the trial court reasoned:
    “The purpose of the PFA Act is to protect victims of
    domestic violence from those who perpetrate such abuse,
    with the primary goal of advance prevention of physical
    and sexual abuse.” Buchhalter v. Buchhalter, 
    959 A.2d 1260
    , 1262 (Pa.Super. 2008).        In PFA hearings, a
    defendant has been afforded due process “where Appellant
    was entitled to present witnesses in his own defense and
    to cross-examine witnesses including Appellee” despite
    being unrepresented by counsel. [Leshko 
    supra at 791
    .]
    In the present matter, although the [c]ourt finds the
    issuance of the Final PFA was proper and in accordance
    with 23 Pa.C.S. § 6107(a), this [c]ourt was willing to
    vacate the Final PFA, and reinstate the temporary PFA to
    afford Appellant the opportunity to defend against the PFA
    petition while still providing Appellee with protection in the
    interim. Because Appellee’s interests are still protected by
    the temporary PFA, this [c]ourt does not find that Appellee
    would be prejudiced if Appellant were granted to the
    opportunity to present a defense to the PFA petition.
    Accordingly, [the court] respectfully submits that this
    matter should be remanded so this [c]ourt can conduct a
    new hearing….
    (Trial Court Opinion at 3-4).      We accept the court’s recommendation;
    Appellant can have her day in court while Appellee remains protected under
    -5-
    J-S69006-15
    the temporary PFA order     Thus, we vacate the final PFA order, direct
    reinstatement of the temporary PFA order, and remand for further
    proceedings.
    Order vacated, case remanded. Jurisdiction is relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/16/2015
    -6-
    

Document Info

Docket Number: 3477 EDA 2014

Filed Date: 12/16/2015

Precedential Status: Non-Precedential

Modified Date: 12/13/2024