S.M.P. v. v. J.A.V.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.M.P.-V. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
J.A.V.,
Appellant No. 66 EDA 2017
Appeal from the Order Entered November 28, 2016
In the Court of Common Pleas of Wayne County
Domestic Relations at No(s): 208-2016 DR
BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: Filed August 8, 2017
J.A.V. appeals from the order, entered in the Court of Common Pleas
of Wayne County, granting S.M.P.-V. a final, three-year Protection From
Abuse (PFA)1 order. We reverse and remand for further proceedings.
S.M.P.-V. filed a petition seeking a PFA order against J.A.V., her ex-
husband, claiming that he had threatened and stalked her while he was on
parole. On May 2, 2016,2 the court granted S.M.P.-V.’s petition and issued a
temporary PFA order against J.A.V. Attached to the temporary PFA order is
a “Notice of Hearing and Order,” indicating that a hearing on the matter was
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1
23 Pa.C.S.A. § 6101.
2
While the order was not entered on the docket until May 2, 2016, it
indicates that it is effective on April 29, 2016, “until otherwise modified or
terminated by th[e] Court.” Temporary PFA Order, 5/2/16.
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scheduled for May 6, 2016. On May 6, 2016, the court issued a modified,
temporary PFA order; the hearing on a final PFA order was rescheduled for
November 4, 2016. This order was served on the parties’ attorneys and on
the Wayne County Sheriff’s Department in Honesdale. On November 1,
2016, S.M.P.-V.’s counsel filed a motion to continue the November 4, 2016
hearing. On November 1, 2016, the court entered an order granting the
continuance and rescheduling the final PFA hearing for November 25, 2016.
This order was served on S.M.P.-V.’s attorney and J.A.V., but not on J.A.V.’s
counsel.3 Indeed, the order indicates that J.A.V. is pro se and that notice
was sent to him via regular mail. Attached to the notice are acceptances of
service noting that the sheriff and prison accepted service of the order.
Notably, attached to those acceptances is an envelope marked, “returne[d]
to sender, attempted - not known, unable to forward,” and that “J.[A.]V. [is]
not at this address.”4 J.A.V. failed to appear for the hearing on November
28, 2016, and a final, three-year PFA order was entered against him.
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3
Despite these facts, the final PFA order indicates that “Defendant was
served in accordance with Pa.R.C.P. 1930.4 and provided notice of the time,
date and location of the hearing scheduled this matter.” Final PFA Order,
11/25/16, at 2.
4
The envelope is addressed to 3111 Wiscasset Drive, Swiftwater, PA, 18370,
which is the address S.M.P.-V. lists as J.A.V.’s address on the PFA petition.
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J.A.V. filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of matters complained of on appeal.5 The trial
court filed its Rule 1925(a) opinion noting, “this Court agrees that Plaintiff’s
attorney failed to give Defendant proper notice of his Motion for Continuance
of the November 4, 2016 hearing and that the Prothonotary’s Office failed to
give Defendant proper notice of the November 1, 2016 Order which
continued the hearing date to November 25, 2016.” Trial Court Opinion,
2/27/16, at 2.
On appeal, J.A.V. raises the following issue for our review:
Whether the trial court erred in granting, by default due to
Defendant’s non-appearance, Plaintiff’s Petition for Protection
From Abuse where Defendant’s Attorney was not given notice by
Plaintiff’s Attorney of his filing of a Motion to Continue Hearing or
the continued date of hearing as well as Defendant’s Attorney
not receiving notice of the continued date of hearing from the
Prothonotary’s Office?
Brief of Appellant, at 11.
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5
Additionally, J.A.V. filed a petition for reconsideration on January 5, 2017.
See Pa.R.C.P. 1930.2(b) (party aggrieved in domestic relations matter may
file motion for reconsideration in accordance with Pa.R.A.P. 1701(b)(3)).
This petition was denied by the trial court because it was filed thirty-eight
days after entry of the November 28, 2016, final PFA order. See Pa.R.A.P.
1701(b)(3)(i). Thus, despite the trial court agreeing that J.A.V. did not
receive proper notice of the rescheduled final PFA hearing, it was unable to
reconsider its order due to the untimely filing of the petition for
reconsideration. See Pa.R.A.P. 1701(b)(3).
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J.A.V. argues that the trial court abused its discretion and committed
an error of law when it entered a final PFA order against him without first
giving him notice of the rescheduled date of the final PFA hearing.
This Court’s standard of review for PFA orders is limited to an error of
law or abuse of discretion by the trial court. Stamus v. Dutcavich, 938
A.2d, 1100 (Pa. Super. 2007). When an appellant’s issue raises an error of
law, our Court’s scope of review is plenary. Kuhlmeier v. Kuhlmeier, 817
A.2d 1127, 1129 (Pa. Super. 2003).
Pennsylvania Rule of Civil Procedure 440 sets forth the appropriate
means of serving papers in a PFA action, other than original process which is
the initial petition. Id. at 1130. The Rule specifically allows mailing these
other papers, such as the instant order that granted the continuance and
rescheduled the parties’ final PFA hearing, to the party's attorney of record.
Id. at 1131. Pursuant to Rule 440(a)(1)(i),
(a) (1) Copies of all legal papers other than original process filed
in an action or served upon any party to an action shall be
served upon every other party to the action.
(i) Service shall be made . . . by handing or mailing
a copy to or leaving a copy for each party at the
address of the party's attorney of record endorsed
on an appearance or prior pleading of the party,
or at such other address as a party may agree[.]
Pa.R.C.P. 440(a)(1)(i).
Instantly, S.M.P.-V. admits that J.A.V.’s counsel should have been, but
was not, served with S.M.P.-V.’s motion for continuance of the November 4,
2016 hearing. Moreover, the record bears out the fact that J.A.V. was
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served personally, under the mistaken notion that he was pro se, while his
counsel, John. J. Martin, Esquire, was not served notice of the continuance
and rescheduled final PFA hearing in contravention of Rule 440(a)(1).
Therefore, because “[d]ue process requires that a party who will be
adversely affected by a court order must receive notice and a right to be
heard in an appropriate setting,” McKinney v. Carolus, 634 A.2d 1144,
1146 (Pa. Super. 1993), we reverse and remand.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2017
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