Richardson, D. v. Richardson, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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