Opinion
J-S11041-16 No. 683 EDA 2015
03-29-2016
KAREN J. MANDLER v. JEFFREY M. MANDLER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order February 24, 2015 in the Court of Common Pleas of Chester County, Domestic Relations at No.(s): 2014-00928-PF BEFORE: FORD ELLIOTT, P.J.E., OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Jeffrey M. Mandler ("Jeffrey") appeals from the Order granting Karen J. Mandler's ("Karen") request for a final Order for Protection from Abuse ("PFA"), pursuant to the Protection From Abuse Act, 23 Pa.C.S.A. § 6101 et seq. ("the PFAA"). We affirm.
The parties were married in 2005 and separated in 2013. Karen filed a PFA Petition on February 11, 2014, which resulted in a temporary PFA Order. The trial court conducted a hearing on January 29, 2015, and entered a final PFA Order on February 24, 2015, pursuant to section 6102(a)(5) of the PFAA. Jeffrey filed a Motion for reconsideration, which the trial court denied. Thereafter, Jeffrey filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal.
The parties, who have one minor child, are presently involved in divorce litigation.
In her Petition, Karen related an incident wherein Jeffrey became angered and grabbed her by the throat and shoved her against a dresser in the parties' bedroom. The police came to the marital home, handcuffed Jeffrey, and placed him in the back of a police cruiser, where he began to kick the window divider. After they secured a promise from Jeffrey that he would leave Karen alone, the police departed. However, Jeffrey refused to leave Karen alone, resulting in her leaving the premises and re-contacting the police, due to his harassment. On prior occasions, Jeffrey had placed GPS trackers on Karen's automobile, in order to spy on her. See PFA Petition, at Attachment A; see also Trial Court Order, 8/10/15, at 4 n.1 (unnumbered).
The matter was initially scheduled for hearing on February 20, 2014, but the hearing was continued on several occasions.
The trial court denied relief under section 6102(a)(2). See Final PFA Order, 2/24/15, at 2.
On appeal, Jeffrey raises the following issues for our review:
1. Did the trial court commit an error of law or abuse of discretion in permitting the introduction of evidence without notice to [Jeffrey]?
2. Did the trial court commit an error of law or abuse of discretion in permitting the testimony of a witness whose identity and the substance of her testimony was not disclosed to [Jeffrey] until the hearing commenced[,] and was credited by the trial court in reaching its decision?
3. Did the trial court properly enter a PFA Order based on the testimony of [Karen] that [Jeffrey] abused [her,] as defined by the [PFAA]?Brief for Appellant at 6 (some capitalization omitted).
"The [PFAA] was created to protect the victims of domestic violence from their abusers. Its goal is not punishment of abusers for past violent behavior, but advance prevention of physical and sexual abuse." Burke ex rel. Burke v. Bauman , 814 A.2d 206, 208 (Pa. Super. 2002) (internal citations omitted). The PFAA defines abuse, in relevant part, as follows:
"Abuse." The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:23 Pa.C.S.A. § 6102(a)(2), (5).
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(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses).
When a claim is presented on appeal that the evidence was not sufficient to support a PFA order, we review the evidence in the light most favorable to the petitioner and, granting her the benefit of all reasonable inferences, determine whether the evidence was sufficient to sustain the trial court's findings by a preponderance of the evidence. Ferri v. Ferri , 854 A.2d 600, 602 (Pa. Super. 2004). "A preponderance of the evidence is defined as 'the greater weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement for preponderance of the evidence.'" Raker v. Raker , 847 A.2d 720, 724 (Pa. Super. 2004) (citation omitted); see also 23 Pa.C.S.A. § 6107(a) (providing that the petitioner must prove the allegation of abuse by a preponderance of the evidence). In the context of a PFA order, we review the trial court's legal conclusions for an error of law or abuse of discretion. Ferri , 854 A.2d at 602.
In his first issue, Jeffrey contends that, following the entry of the temporary PFA Order on February 11, 2014, he received no notification that Karen intended to rely on events that occurred subsequent to the entry of that Order at the final PFA hearing. Brief for Appellant at 17. Jeffrey asserts that he was denied due process of law by the admission of material evidence at the hearing that was not contained in the PFA Petition. Id. at 18-19. Jeffrey claims that Karen withheld information about her case from him for nearly eight months. Id. at 20. Jeffrey asserts that Karen should have amended her PFA Petition to incorporate the subsequent events. Id. at 21.
In its Order, the trial court addressed Jeffrey's first issue, set forth the relevant law, and concluded that it lacks merit. See Trial Court Order, 8/10/15, at 2-3 n.1 (unnumbered). We agree with the sound reasoning of the trial court and affirm on this basis as to this issue. See id.; see also Hood-O'Hara v. Wills , 873 A.2d 757, 761 (Pa. Super 2005) (wherein the trial court noted that, pursuant to Pa.R.C.P. 1930.5(a), there is no discovery in PFA proceedings unless authorized by a court order).
In his second argument, Jeffrey contends that the trial court erred by permitting Patty Kubicek ("Kubicek") to testify regarding events which occurred subsequent to the temporary PFA Order, where Kubicek had not been interviewed by police, and Jeffrey's counsel had only been given ten minutes to interview Kubicek prior to the hearing. Brief for Appellant at 24, 25. Jeffrey additionally asserts that he "believed that [Kubicek's] testimony was incorrect, but had no means to rebut it other than by description in his own testimony." Id.
In its Order denying Jeffrey's Motion for reconsideration, the trial court addressed Jeffrey's second argument, and determined that it is waived. See Trial Court Order, 8/10/15, at 3 n.1 (unnumbered). We agree with the sound reasoning of the trial court and affirm on this basis as to this issue. See id.; see also Pa.R.A.P. 302(a) (providing that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal."); Wills , 873 A.2d at 761 (concluding that appellant's objection to a witness was waived, as he failed to object to the witness at the PFA hearing).
The trial court further determined that, even if Jeffrey's second issue had not been waived, it nevertheless lacks merit. See Trial Court Order, 8/10/15, at 3 n.1 (unnumbered). We agree with the reasoning of the trial court. See id.; see also Wills , 873 A.2d at 761 (wherein the trial court noted that, pursuant to Pa.R.C.P. 1930.5(a), there is no discovery in PFA proceedings unless authorized by a court order).
In his third issue, Jeffrey concedes that the trial court found, based on incidents that occurred on February 7, 2014 and March 24, 2014, that Jeffrey had "knowingly engag[ed] in a course conduct or repeatedly commit[ed] acts toward another person including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury." Brief for Appellant at 26-27. However, Jeffrey points out that the trial court determined that Karen failed to prove that she had a reasonable fear of imminent serious bodily injury from Jeffrey, pursuant to 23 Pa.C.S.A. § 6102(a)(2). Id. at 26. Jeffrey argues that, "[i]f the evidence that was improperly admitted is removed from the record in this case, there is insufficient evidence to support [Karen's] claims of abuse." Id. at 27. Jeffrey claims that the only person that the trial court credited in making its decision was Kubicek, who testified regarding events that occurred after the filing of the PFA Petition. Id. at 27-28 (unnumbered). Jeffrey asserts that "[t]here is no finding in the original proceedings to support a credibility determination of one party over the other[,] and thus no preponderance of the evidence to support the entry of the [final PFA Order]." Id. at 28 (unnumbered). Jeffrey contends that, for this reason, Karen could not prove her entitlement to a final PFA Order, and her Petition should have been dismissed. Id.
In its Order, the trial court addressed Jeffrey's third issue, pertaining to section 6102(a)(5), and concluded that it lacks merit. See Trial Court Order, 8/10/15, at 4 n.1 (unnumbered). We agree with the sound reasoning of the trial court and affirm on this basis as to this issue. See id.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/29/2016
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