Opinion
J-S49019-15 No. 544 MDA 2015
08-07-2015
KRISTIN N. ETTINGER, Appellee v. FREDERICK R. HEIMBAUGH, III, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered March 9, 2015, in the Court of Common Pleas of Snyder County, Civil Division, at No(s): CV-78-2015 BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ. MEMORANDUM BY ALLEN, J.:
Frederick R. Heimbaugh, III ("Appellant") appeals from the final protection from abuse ("PFA") order entered in favor of Kristin N. Ettinger ("Appellee").
Appellant raises a single issue for our review:
DOES THE SNYDER COUNTY COURT OF COMMON PLEAS HOLD JURISDICTION TO CONDUCT A PROTECTION FROM ABUSE EVIDENTIARY HEARING MORE THAN TEN BUSINESS DAYS AFTER THE PROTHONOTARY RECEIVES A PROTECTION FROM ABUSE PETITION?Appellant's Brief at 4.
Appellee proceeded pro se throughout the underlying proceedings and has not filed an appellate brief.
Our review of the record reveals the following: Appellee filed a petition for a PFA order on February 20, 2015. After an ex parte hearing, the trial court entered a temporary PFA order that same day - on February 20, 2015. The Court Administrator's office scheduled a final PFA hearing for March 9, 2015. At the outset of the March 9, 2015 hearing, counsel for Appellant made an oral motion to dismiss the PFA petition on the basis that the hearing had not been scheduled within ten (10) business days, as mandated by 23 Pa.C.S.A. § 6107(a).
The statute provides:
Within ten business days of the filing of a petition under this chapter, a hearing shall be held before the court, at which the plaintiff must prove the allegation of abuse by a preponderance of the evidence.23 Pa.C.S.A. § 6107(a).
The following exchange occurred:
COUNSEL: . . . The Court is required to have an initial hearing within 10 days - business days of the Protection from Abuse Petition. The PFA in this matter was lodged with the Prothonotary - lodged with the Sheriff and served upon [Appellant] on the 20th of February, 2015. The 10 business days per 6107(a) would include the dates of February 23rd through [March] 2nd and the dates of March 2nd through March 6th, none of which were a government holiday.N.T., 3/9/15, at 4-5. In its Pa.R.A.P. 1925(a) opinion, the trial court stated, "The court denied that motion because a judge was not available to conduct the hearing prior to March 9, 2015." Trial Court Opinion, 4/10/15, at 1.
THE COURT: We note your Motion, and we would also note for the record we are a - let's see - two-county, two-presiding judge district. At the time the Motion was filed, I believe Senior Judge Woelfel was the person who signed the ex parte proceeding order and entered the temporary order.
After that, the Court - this judge was on vacation until March the 2nd. The dates of Wednesday, the 25th through Friday the 27th were the president - or excuse me - was the Pennsylvania Trial Judge's Conference in Pittsburgh at which all judges, both Judge Sholley and Senior Judges Woelfel and Knight attended. We also note that the week beginning with Monday, March the 2nd, let's just say it was a rather busy week with a two-day trial, three days of pleas and sentencings and other proceedings, and that there was no time during which that this [sic] proceeding could be held in 10 days.
We do note that 23 Pa.C.S. §6107 does include mandatory language that a hearing shall be held within 10 days. With all due respect to the legislature, we did not have a judge available, nor did we have time available.
Therefore, we will deny the Motion to Dismiss for not holding a hearing within 10 business days.
We initially note that we review the propriety of a PFA order for an abuse of discretion. Ferko-Fox v. Fox , 68 A.3d 917, 920 (Pa. Super. 2013) (citation omitted).
Here, the record reflects, and it is not disputed, that the PFA hearing commenced eleven, rather than ten, business days from the date of filing. Appellee filed her PFA petition on February 20, 2015. The tenth business day following February 20, 2015 was Friday, March 6, 2015. The hearing commenced Monday, March 9, 2015 - one business day later. In a similar case, Kuhlmeier v. Kuhlmeier , 817 A.2d 1127 (Pa. Super. 2003), we observed:
In the present case, . . . the petition was timely filed but the initial hearing was scheduled for two days after the PFA order expired. Since the record does not show any request by the petitioner for any particular date , we presume this hearing date was chosen according to the court's schedule. The petitioner in such a situation cannot be penalized for scheduling delays which are beyond the petitioner's control . Thus, we conclude that the fact that the hearing was held after the PFA order expired does not divest the trial court of the power to hear the evidence and, if appropriate, enter an order extending that order.Kuhlmeier , 817 A.2d at 1130 (emphasis added).
Upon review, we likewise conclude that Appellee, as the PFA petitioner in this case, "cannot be penalized for scheduling delays which are beyond [her] control" and the trial court was not "divested of the power to hear the evidence." Id. As cited above, the trial court provided four reasons for the one-day delay in scheduling the hearing: Snyder County's unique status of having only two presiding judges who serve both Snyder and Union counties because the two counties comprise one Judicial District; President Judge Hudock's vacation; the Pennsylvania Trial Judge's Conference in Pittsburgh which was attended by both the presiding and senior judges serving Snyder (and Union) County; and an extremely "busy week" of March 2 - 6, 2015, encompassing a two-day trial, pleas, sentencing and "other proceedings." See N.T., 3/9/15, at 4. We find these circumstances compelling. Moreover, we recognize "the purpose of Pennsylvania's Protection from Abuse Act is to protect victims of domestic violence from those who perpetrate such abuse." See , e . g ., Lawrence v. Border , 907 A.2d 1109, 1112 (Pa. Super. 2006). In his brief, Appellant advances a singular argument that the PFA order in this case should be vacated based on the trial court's lack of jurisdiction vis-à-vis 23 Pa.C.S.A. § 6107. See Appellant's Brief at 7-11. Appellant does not dispute the circumstances giving rise to the one-day delay, nor does he mention any prejudice or address the underlying merits of the PFA order. Upon review of the record, and given the entirety of the facts and circumstances before us, we decline Appellant's request that we vacate the PFA order. Appellant's requested relief would not only penalize Appellee, Kuhlmeier , supra , but also reward Appellant's attempt to circumvent the PFA, when it is well-settled that the PFA's purpose is to "protect victims of domestic abuse from those who perpetrate" it. Lawrence , supra . Accordingly, we find no abuse of discretion in the trial court's entry of the final PFA order.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2015