Beck, N. v. Beck, J.

J-S14018-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
NICOLE BECK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH BECK :
:
Appellant : No. 1206 WDA 2022
Appeal from the Order Entered September 12, 2022
In the Court of Common Pleas of Blair County Civil Division at No(s):
2021 GN 1776
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 6, 2023
Appellant, Joseph Beck, appeals from the trial court’s September 12,
2022 order denying his petition to expunge the record of a final protection
from abuse order entered against him under the Protection from Abuse Act
(PFA), 23 Pa.C.S. §§ 6101-6122. After careful review, we reverse the court’s
order and remand with instructions.
The trial court summarized the pertinent history of this case, as follows:
[Appellant] was a defendant in a [PFA] … action that resulted in a
final PFA order entered against [him]. The final order was entered
into, by agreement of the parties, on April 12, 2022[,] and expired
on July 2, 2022. [Appellant] filed an Expungement Petition on
August 18, 2022. In his Petition, [Appellant] was seeking
expungement of the record of his final PFA order. This [c]ourt
heard [Appellant’s] argument on September 12, 2022. [O]n that
same day, this [c]ourt issued an opinion denying [Appellant’s]
Expungement Petition.
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* Retired Senior Judge assigned to the Superior Court.
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Trial Court Opinion (TCO), 10/26/22, at 1.
Appellant filed a timely notice of appeal. The court did not direct him to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,
but it filed a Rule 1925(a) opinion on October 26, 2022. Herein, Appellant
states two issues for our review:
1. Did the trial court err in denying Appellant’s Expungement
Petition by claiming Pennsylvania law precludes expungement
of PFA cases that have a consent agreement approved as an
order of court?
2. Alternatively, did the trial court err by not allowing a Wexler[1]
analysis to take place?
Appellant’s Brief at 4.
Initially, we observe that Appellant does not present any argument on
his second issue. Instead, in the Argument section of his brief, he states his
second issue as follows: “The agreement entered by the parties was not a
‘Final Order.’” Id. at 16. Because Appellant presents no developed argument
on his “Wexler analysis” issue, it is waived. See Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa. Super. 2007) (“When briefing the various issues that
have been preserved, it is an appellant’s duty to present arguments that are
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1 Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa. 1981) (setting forth a
non-exhaustive list of factors for the court’s consideration on review of an
adult expungement petition as follows: (1) the strength of the
Commonwealth’s case against the petitioner; (2) the reasons the
Commonwealth gives for wishing to retain the records; (3) the petitioner’s
age, criminal record, and employment history; (4) the length of time that has
elapsed between the arrest and the petition to expunge; and (5) the adverse
consequences the petitioner may endure should expungement be denied).
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sufficiently developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with citations to legal
authorities. … [W]hen defects in a brief impede our ability to conduct
meaningful appellate review, we may dismiss the appeal entirely or find
certain issues to be waived.”).
Moreover, Appellant did not present, in his ‘Statement of the Questions
Involved,’ his claim that the agreement entered by the parties was not a final
order. This Court has held that such a failure results in waiver of appellate
issues. See Interest of: J.R.R., 229 A.3d 8 (Pa. Super. 2020) (holding that
any issue not set forth in or suggested by an appellant’s Statement of the
Questions Involved is deemed waived). Thus, we will not consider the
arguments set forth in support of the second issue in Appellant’s brief.
However, to the extent Appellant’s first issue involves a more cursory
argument that the PFA order was not a ‘final order’ as contemplated by the
statute, we will assess that claim.
In reviewing Appellant’s issues, we apply the following standard:
The decision to grant or deny a request for expungement of an
arrest record lies in the sound discretion of the trial judge, who
must balance the competing interests of the petitioner and the
Commonwealth. We review the decision of the trial court for an
abuse of discretion.
Commonwealth v. Rodland, 871 A.2d 216, 218 (Pa. Super. 2005) (citing
Commonwealth v. Lutz, 788 A.2d 993, 996 (Pa. Super. 2001)).
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In Graham v. Flippen, 179 A.3d 85 (Pa. Super. 2018), we summarized
the law regarding expungement of PFA records, as follows:
[I]n Carlacci [v. Mazaleski, 798 A.2d 186 (Pa. 2002)], a
temporary PFA order was issued against Carlacci; however, that
order was ultimately ordered null and void, as per a stipulation
entered by the parties. [Id.] at 187. In ruling that Carlacci was
entitled to expungement of that record, our Supreme Court
focused on the fact that the PFA petition was “discontinued before
a hearing at which the plaintiff … would have had to meet the
burden of proving by a preponderance of the evidence that the
allegation of abuse contained in the PFA[] petition[] had
occurred.” [Id.] at 190–91. In other words, the trial court had
never issued a permanent order or made any findings of fact that
the allegations of abuse had actually happened; rather, the record
contained only “bald allegations of prior alleged acts of abuse that
were contained in [the plaintiff’s] petition, nothing more.” Id. at
191 (citation omitted).
After Carlacci, this Court decided [Commonwealth v.]
Charnik[, 921 A.2d 1214 (Pa. Super. 2007)]. There, a final PFA
order was entered against Charnik following a hearing. However,
the plaintiff ultimately sought, and was granted, leave to withdraw
that final PFA order. Thereafter, Charnik petitioned for
expungement of the PFA record. In affirming the trial court’s
denial of Charnik’s petition, we initially reiterated Carlacci’s
holding that “when a PFA[] petition filed against a PFA[] defendant
has been dismissed by court order, … or the PFA[] proceedings
never evolve beyond the temporary order stage, … expungement
is proper as a matter of law.” Charnik, 921 A.2d at 1219–20
(emphasis added; relying on Carlacci, supra, and P.E.S. v. K.L.,
720 A.2d 487 (Pa. Super. 1998)). However, we also declared that
there exists an “expungement continuum” that “ranges from (a)
illegal or void civil commitments, acquittals in criminal cases, and
PFA matters that have not been proven and brought to final order
(such as … Carlacci), where expungement is proper as a matter
of law, to (b) non-conviction or arrest records, as in nol pros or
ARD, where expungement is a matter of judicial decision...,
and to (c) conviction records, where there is no right of
expungement except by statutory authorization in limited
circumstances.” Id. at 1220 (emphasis in original). We then held
that Charnik’s PFA record was “closer to a conviction rather than
a non-conviction record[,]” as “a final order was entered … only
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after facts were brought forth proving the allegations of abuse by
a fair preponderance of the evidence….” Id. Thus, we held that
expungement was not warranted, presumably because there is no
statutory authorization for the expungement of a PFA record, id.
at 1218, and Charnik also did not meet the strict requirements for
expungement of the records of a convicted person, id. at 1217.
Applying Carlacci and Charnik to [Graham], [this Court
determined] that three of [Graham’s] PFA cases [fell] under prong
(a) on the ‘expungement continuum,’ and warrant[ed]
expungement as a matter of law. In those three cases, only
temporary PFA orders were entered against [Graham], and each
of those orders were ultimately dismissed before a hearing was
held, at which [Graham’s accuser] would have had to prove her
allegations of abuse by a preponderance of the evidence.
Therefore, the [three] records [at issue] contain[ed] only bald,
unproven allegations of abuse, to which [Graham was] entitled to
expungement as a matter of law.
Graham, 179 A.3d at 87–88.
In the instant case, Appellant claims that the trial court erred by
interpreting our Supreme Court’s decision in Carlacci as precluding the
expungement of any PFA record where a final order was entered. Namely,
the trial court opined:
[T]he Supreme Court in Carlacci distinguished temporary PFA
orders from final PFA orders. The Court held that temporary PFA
orders could be expunged. Carlacci, 798 A.2d at 191. The
Supreme Court in Carlacci[] focused on the fact that the PFA
order it was reviewing was discontinued before a hearing was
held. Id. at 190. The [C]ourt there cited to Judge Emeritus
Cercone’s dissenting memorandum that stated, “[T]he PFA[]
proceedings never legally evolved beyond the temporary order
stage…[. T]he Trial Court did not issue a permanent order[.]” Id.
at 191. The [C]ourt in Carlacci then compared a temporary PFA
order to an acquittal of a criminal offense, stating, “[I]t is equally
improper to [assess] the strength of a PFA[] petition that has since
been dismissed by court order before the plaintiff even attempted
to meet its burden of proving the allegation of abuse contained in
the PFA[] petition[.]” Id.….
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Because the Supreme Court focused on the temporary nature of
the PFA order, this [c]ourt interpreted the Carlacci case to mean
that [a] temporary PFA order could be expunged, but final PFA
orders could not be expunged. In the instant case, a final PFA
order was entered on April 12, 2022. Because the PFA order
entered in the instant case was a final order, this [c]ourt denied
[Appellant’s] Expungement Petition.
TCO at 2-3.
Appellant contends that, contrary to the trial court’s interpretation of
Carlacci, it does not stand for the conclusion that expungement is precluded
where a PFA case has gone past the point of a temporary PFA order being
entered. See Appellant’s Brief at 12. Instead, he claims that “[t]he Carlacci
case merely allowed for expungement of PFA actions where the case had not
proceeded past the entry of a Temporary PFA Order….” Id. (emphasis added).
According to Appellant, the case law discussed above regarding the
“expungement continuum” requires both the entry of a final order and the
allegations of abuse to have been proven. He insists that here, not only was
the agreement by the parties not a ‘final order’ as contemplated by the PFA
statute but, even if it was, “[t]here was no evidentiary hearing, no evidence
presented, no admissions[,] and no abuse … proven….” Id. at 15. Therefore,
he insists that “expungement is … proper as a matter of law.” Id.
Initially, we disagree with Appellant that the PFA order was not intended
to be a final order but, instead, a consent agreement. Notably, the PFA order
is titled, “Final Order.” See Final PFA Order, 4/12/22, at 1. While the order
states that it “is entered by agreement without an admission[,]” it immediately
thereafter directs that, “[w]ithout regard as to how the order was entered,
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this is a final order of court subject to full enforcement pursuant to
the Protection from Abuse Act.” Id. at 2 (emphasis added). Therefore,
we agree with the trial court that the order was meant to constitute a final
PFA order.
However, after careful review, we agree with Appellant that
expungement of his PFA record was warranted in this case, albeit for a
different reason than he provides. Again, Appellant contends that he is
entitled to expungement as a matter of law because there was no finding of
abuse or admission of wrongdoing on his part. We need not decide whether
Appellant is correct that there must be both an explicit finding or admission
of abuse, as well as a final PFA order entered, before expungement is not
warranted as a matter of law. This is because here, the court failed to conduct
any hearing before issuing the final PFA order. “Pursuant to the PFA[ Act],
once a petition is filed[,] a hearing shall be held within 10 days.” P.E.S., 720
A.3d at 489 (emphasis added; citing Heard v. Heard, 614 A.2d 255 (Pa.
Super. 1992)). “If a hearing is not held, a trial court lacks jurisdiction to
grant relief to the filing party.” Id. (emphasis added; citing Heard, 614
A.2d at 640).
In this case, no hearing was conducted, yet the court entered a final PFA
order stating, “Plaintiff’s request for a final protection order is granted.” Final
PFA Order at 2. Because no hearing was held, the court did not have
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jurisdiction to enter that final PFA order granting the plaintiff relief.2 In other
words, that order was a legal nullity. Consequently, the PFA proceedings in
this case did not validly progress past the point of the temporary PFA order.
Accordingly, applying Carlacci, Charnik, and Graham, we conclude that
Appellant’s PFA case falls under prong (a) on the ‘expungement continuum,’
and warrants expungement as a matter of law.
Thus, we reverse the trial court’s order denying Appellant’s petition for
expungement, and remand this case for the trial court to enter an order
expunging the docket related to the PFA proceedings in this case.
Order reversed. Case remanded with instructions. Jurisdiction
relinquished.
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2 We recognize that the PFA Act allows for the parties to enter a consent
agreement, which the court can then approve and continue the PFA
proceedings during the pendency of that agreement. See 23 Pa.C.S. §
6108(a) (“The court may grant any protection order or approve any consent
agreement to bring about a cessation of abuse of the plaintiff or minor
children.”) (emphasis added); see also Fischl v. Fischl, 260 A.3d 128 (Pa.
Super. 2021) (unpublished memorandum) (explaining that, after Father filed
for a temporary PFA order against Son, the parties entered into a consent
agreement, which stated that a final PFA order would be entered if Son
violated any of the terms of the consent agreement, and that the PFA action
was continued for a period not to exceed three years). Thus, while we reject
Appellant’s argument that the final order issued in this case should be
construed as a consent agreement, we recognize that the parties could have
entered a consent agreement, which the court could have then approved and
continued the PFA action during the pendency thereof. See 23 Pa.C.S. §
6107(c) (“Continued hearings”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2023
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