Pennsylvania: Restraining Orders
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Pennsylvania Protection from Abuse Act
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Introduction
The Pennsylvania Protection from Abuse Act provides a process for victims of crime or domestic abuse to seek and obtain orders of protection. See generally, Protection from Abuse Act, 23 Pa. C.S. § 6101 et seq. Once an order of protection is entered, a perpetrator can be arrested for violating it, or can be held in criminal or civil contempt (which can include monetary penalties). See 23 Pa. C.S. §§ 6113, 6114.
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Text of Key Statutes
(1) 23 Pa. C.S. § 6102(a) - Definition of Abuse.
(a) General rule.
The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
"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:
(1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon.
(2) Placing another in reasonable fear of imminent serious bodily injury.
(3) The infliction of false imprisonment pursuant to 18 Pa.C.S. § 2903 (relating to false imprisonment).
(4) Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services).
(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).
(2) 23 Pa. C.S. § 6106. Commencement of proceedings [excerpted].
(a) General rule.
An adult or an emancipated minor may seek relief under this chapter for that person or any parent, adult household member or guardian ad litem may seek relief under this chapter on behalf of minor children, or a guardian of the person of an adult who has been declared incompetent under 20 Pa.C.S. Ch. 51 Subch. B (relating to appointment of guardian) may seek relief on behalf of the incompetent adult, by filing a petition with the court alleging abuse by the defendant.
(3) 23 Pa. C.S. § 6107 - Hearings (including temporary orders).
(a) General rule.
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. The court shall, at the time the defendant is given notice of the hearing, advise the defendant of the right to be represented by counsel, of the possibility that any firearm, other weapon or ammunition owned and any firearm license possessed may be ordered temporarily relinquished, of the options for relinquishment of a firearm pursuant to this chapter, of the possibility that Federal law may prohibit the possession of firearms, including an explanation of 18 U.S.C. § 922(g)(8) (relating to unlawful acts), and that any protection order granted by a court may be considered in any subsequent proceedings under this title. This notice shall be printed and delivered in a manner which easily attracts attention to its content and shall specify that child custody is one of the proceedings where prior protection orders may be considered.
(b) Temporary orders.
(1) If a plaintiff petitions for temporary order for protection from abuse and alleges immediate and present danger of abuse to the plaintiff or minor children, the court shall conduct an ex parte proceeding.
(2) The court may enter such a temporary order as it deems necessary to protect the plaintiff or minor children when it finds they are in immediate and present danger of abuse. The order shall remain in effect until modified or terminated by the court after notice and hearing.
(3) In addition to any other relief, the court may, pursuant to section 6108 (relating to relief), direct that the defendant temporarily relinquish to the sheriff any firearms, other weapons or ammunition for the duration of the temporary order if the petition demonstrates any of the following:
(i) Abuse which involves a firearm or other weapon.
(ii) An immediate and present danger of abuse. In determining whether an immediate and present danger of abuse exists, the court shall consider a number of factors, including, but not limited to:
(A) Whether the temporary order of protection from abuse is not likely to achieve its purpose in the absence of such a condition.
(B) Whether the defendant has previously violated a protection from abuse order.
(C) Whether past or present abuse to the plaintiff or any of the plaintiff's minor children resulted in injury.
(D) Whether the abuse occurred in public.
(E) Whether the abuse includes:
(I) threats of abuse or suicide;
(II) killing or threatening to kill pets;
(III) an escalation of violence;
(IV) stalking or obsessive behavior;
(V) sexual violence; or
(VI) drug or excessive alcohol use.
(4) If the court orders the defendant to temporarily relinquish any firearm, other weapon or ammunition pursuant to paragraph (3), the defendant shall decide in what manner the defendant is going to relinquish any firearm, other weapon or ammunition listed in the order. Relinquishment may be to the sheriff pursuant to section 6108(a)(7) or to a third party for safekeeping pursuant to section 6108.3 (relating to relinquishment to third party for safekeeping).
(c) Continued hearings.
If a hearing under subsection (a) is continued and no temporary order is issued, the court may make ex parte temporary orders under subsection (b) as it deems necessary.
(4) 23 Pa. C.S. § 6108. Relief available [Excerpted].
(a) General rule.
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. The order or agreement may include:
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. The order or agreement may include:
(1) Directing the defendant to refrain from abusing the plaintiff or minor children.
(2) Granting possession to the plaintiff of the residence or household to the exclusion of the defendant by evicting the defendant or restoring possession to the plaintiff if the residence or household is jointly owned or leased by the parties, is owned or leased by the entireties or is owned or leased solely by the plaintiff.
(3) If the defendant has a duty to support the plaintiff or minor children living in the residence or household and the defendant is the sole owner or lessee, granting possession to the plaintiff of the residence or household to the exclusion of the defendant by evicting the defendant or restoring possession to the plaintiff or, with the consent of the plaintiff, ordering the defendant to provide suitable alternate housing.
(4) Awarding temporary custody of or establishing temporary visitation rights with regard to minor children. In determining whether to award temporary custody or establish temporary visitation rights pursuant to this paragraph, the court shall consider any risk posed by the defendant to the children as well as risk to the plaintiff.
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(8) Directing the defendant to pay the plaintiff for reasonable losses suffered as a result of the abuse, including medical, dental, relocation and moving expenses; counseling; loss of earnings or support; costs of repair or replacement of real or personal property damaged, destroyed or taken by the defendant or at the direction of the defendant; and other out-of-pocket losses for injuries sustained. In addition to out-of-pocket losses, the court may direct the defendant to pay reasonable attorney fees. An award under this chapter shall not constitute a bar to litigation for civil damages for injuries sustained from the acts of abuse giving rise to the award or a finding of contempt under this chapter.
(9) Directing the defendant to refrain from stalking or harassing the plaintiff and other designated persons as defined in 18 Pa.C.S. §§ 2709 (relating to harassment) and 2709.1 (relating to stalking).
(10) Granting any other appropriate relief sought by the plaintiff.
(5) 23 Pa. C.S. § 6108 - Extension of order.
(a) Extension of protection orders.
(1) An extension of a protection order may be granted:
(i) Where the court finds, after a duly filed petition, notice to the defendant and a hearing, in accordance with the procedures set forth in sections 6106 and 6107, that the defendant committed one or more acts of abuse subsequent to the entry of the final order or that the defendant engaged in a pattern or practice that indicates continued risk of harm to the plaintiff or minor child.
(ii) When a contempt petition or charge has been filed with the court or with a hearing officer in Philadelphia County, but the hearing has not occurred before the expiration of the protection order, the order shall be extended, at a minimum, until the disposition of the contempt petition and may be extended for another term beyond the disposition of the contempt petition.
(2) An extension of a protection order may be granted:
(3) There shall be no limitation on the number of extensions that may be granted.
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Cases
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Mescanti v. Mescanti, 956 A.2d 1017 (Pa. Sup. Ct. 2008).
- Procedural Posture: Husband appealed from trial court’s entry of order of Protection from Abuse (PFA)
- Law: Protection from Abuse Act
- Facts: Wife sought PFA against husband after he swore at her and told her “you better not go to sleep. You better not even close your eyes.” She testified that she heard him cocking guns in their basement following fights, that he would come home from work and interrupt her sleep to instigate fights, that he hacked into her private email on several occasions and went through her belongings, and, on one occasion, he took her keys and cell phone from her and locked her out of the house, disconnected the phone lines, and tampered with her car.1
- Outcome: The court affirmed the trial court’s decision entering the PFA, reasoning that the trial court properly concluded that husband’s course of conduct reasonably placed wife in fear of bodily injury and constituted “abuse” under the Protection from Abuse Act.
- Special Notes: The PFA challenged in this case reflects the broad range of relief available, as it prohibited the husband from contacting the wife, granted the wife exclusive possession of the marital home, granted the wife temporary custody of the children, granted the husband supervised visitation with the children pending further custody proceedings, and prohibited the husband from possessing firearms.
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Commonwealth v. Ivy, 146 A. 3d 241 (Pa. Sup. Ct. 2016).
- Procedural Posture: the Commonwealth appealed from court’s trial court’s order excluding evidence or protection orders entered against defendant accused of rape, kidnapping, and aggravated assault.
- Law: Protection from Abuse Act
- Facts: The victim and defendant met on a dating website and began dating until the defendant “dumped” the victim via Facebook messenger, accusing her of lying about seeing another male, calling her names, and expressing hope that she kills herself.2 Following the break-up, the victim wen to the Defendant’s apartment to retrieve a pillow. The Defendant invited her in and began calling her names. He would not let the victim leave, struck her, choked her, and pulled her hair. He asked the victim to have sex, and she agreed out of fear. After several hours, the Defendant let the victim leave, but later messaged her to tell her he had recorded them having sex and would send it to everyone they knew if she reported him to police. The victim reported the incident and the Defendant was arrested. A few weeks later, the victim’s request for an order for Protection from Abuse (PFA) was granted. The Defendant then engaged a third party to tell the victim to withdraw the criminal charges against him and /or refuse to appear the preliminary criminal hearing. He was convicted of violating the PFA for doing so.3 At trial, the victim sought to introduce evidence of the PFA she obtained and the violation, as well as two PFA obtained by other women against the defendants and violations. The defendant sought to exclude this evidence. The trial court declined to admit the PFAs and records concerning violation, and the Commonwealth appealed.
- Outcome: The appellate court ruled that the PFAs were admissible in the rape trial because the PFA order and violation regarding the victim was relevant to the history of the relationship and the Defendant’s consciousness of guilt in asking the victim to drop the charges.4 The Court reasoned that the PFA records regarding two other women were admissible to show the Defendants’ common scheme in terms of how he manipulated and abused the women.5
- Special Notes: While this case does not specifically address the basis for entry of the PFAs, it provides guidance regarding the use of PFAs to strengthen and corroborate other claims made against perpetrators.
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Practice Pointers
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The definition of “Abuse” includes “knowingly engaging in 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.” Thus, if the perpetrator followed the victim or repeatedly committed acts that made the victim fear for her safety, an order of protection may be an option.
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While the victim is awaiting the full hearing, a temporary order can be sought without the perpetrator’s presence if the victim or minor children are in immediate danger
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The Court has broad discretion to fashion appropriate relief, which in addition to ordering the perpetrator to refrain from abusing the victim, can include granting the victim sole possession of a shared residence, granting temporary custody of minor children to the victim, and ordering the perpetrator to relinquish any firearms
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The victim can also seek reasonable monetary damages (e.g., medical, dental, lost wages, moving costs, counseling costs) suffered as a result of the abuse as well as reasonable attorneys’ fees.
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