The definition of “proceeding” was finally addressed April 17 by the Pennsylvania Superior Court in Ferko-Fox v. Fox, 2013 Pa. Super. 88. The holding in Ferko-Fox is important for both the court and family law practitioners because it reinforces the procedural step outlined by 23 Pa.C.S. §6107(b), which requires courts to hold an ex parte proceeding on petitions for protection from abuse before issuing temporary orders.
The pertinent facts of Ferko-Fox are as follows: The wife, Donna L. Ferko-Fox, filed a petition for a protection from abuse order March 22, 2011, in the Lancaster County Court of Common Pleas. As was the procedure in Lancaster County, the judge reviewed the wife’s petition in camera, without either party present, and granted the wife a temporary protection from abuse order (PFA). Simultaneously, a hearing was scheduled for March 28, 2011. The temporary PFA gave the wife exclusive possession of the marital home in addition to prohibiting the husband, Jonathan P. Fox, from having any contact with the wife and from stalking or harassing the wife’s mother.
The parties appeared at the first hearing March 28, 2011, at which time the wife requested a continuance in order to retain counsel. She contacted her local legal aid office at the time of the filing of her petition, but they were not available and advised her to seek a continuance with the hope that counsel from their office would be available on the new date, according to the opinion. The hearing was continued until May 9, 2011, at which point in time part of the PFA hearing was held. Since the hearing did not conclude that day, the second part of the hearing was rescheduled and heard September 28, 2011. On November 23, 2011, a final PFA was entered on behalf of the wife. It is unclear from the facts outlined in the Superior Court’s opinion as to why the final PFA was not entered until almost two months after the final hearing; but, nevertheless, the court found that the PFA should be in place for 18 months from March 22, 2011, when the wife’s petition was filed.
The husband appealed the entry of the final PFA on the basis that he believed the trial court failed to hold an ex parte hearing at the outset, in violation of his due process rights, before entering the temporary PFA. The husband also alleged that the local judge failed to hold a hearing within 10 days as required by statute, that the evidence presented at trial was not sufficient to support the entry of a final PFA and that the trial court abused its discretion in not permitting him, at the final hearing, to cross-examine the wife about friends and relatives who did not testify on behalf of the wife and were merely in attendance for emotional support. While the Superior Court agreed with the husband’s claim that the trial court erred by not having a full ex parte hearing before granting a temporary protection from abuse order, they found that the trial court did not err for the other reasons alleged by the husband and affirmed the final PFA entered November 23, 2011. Interestingly enough, because the final PFA was only entered for an 18-month period retroactive to the date of filing, the order had expired by the time this case was argued and decided by the Superior Court.
The focus of this article is on the Superior Court’s analysis of the requirements of 23 Pa.C.S. §6107(b)(1), which states: “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.” According to the court’s opinion in Ferko-Fox, the procedure in Lancaster County was that judges hold an in camera review of petitions for protection from abuse without any parties present. If the judge feels that the petition is sufficient for the entry of a temporary PFA on its face, one will be issued. Conversely, if the allegations are not sufficient to warrant the entry of a temporary PFA, the court will issue a scheduling order only and list the matter for a final hearing. Apparently, the court rarely interviews, or has any contact with, the plaintiff, and obviously no contact with the defendant whose rights may be temporarily affected. Because the statute is unclear as to what constitutes a “proceeding,” the practice most likely came into place because there are numerous petitions to review on a given day and not enough time for judges to review them. Since the statute does not say “hearing” but “proceeding,” it makes sense that most area counties did not require anything more than a judicial, in camera review of a petition before the Ferko-Fox ruling.
In Ferko-Fox, the Superior Court found that the stated practice in Lancaster County did not comply with §6107(b) because the practice “reduces the procedural safeguards established within the section and increases the risk of an erroneous deprivation of the respondent’s liberty. Although the denial of rights under §6107(b) is limited in duration, the temporary nature of the deprivation does not obviate the requirements of the procedural process.” The court opined that even though a petition may be verified by the petitioner, the verification alone is not sufficient enough for a judge to determine whether the allegations are sufficient to warrant the entry of a temporary PFA. The court stated that petitioners are least likely to lie when sworn in to testify before a judge as to the facts in a PFA than they are by words on paper. In addition to being able to better determine a petitioner’s credibility, the judge, by holding a brief hearing, would be able to ask the petitioner questions about the abuser and/or incident that the petitioner may not have detailed in the petition, making the judge better be able to discern whether the petitioner’s motive in filing the request for a PFA was pure or merely to get an advantage in another court proceeding.
Judge Paula Francisco Ott published a dissenting opinion in this case because she did not agree that the alleged perpetrator’s due process rights were violated because a petitioner did not have to testify to a verified petition. The judge stated that the majority’s concern that the court would not be able to determine the veracity of verified facts without observing a petitioner’s facial expressions was unwarranted, especially because the judge reviewing the petition could always ask to speak to the petitioner if he or she had any questions. Ott went on to say that the real concern in the underlying case was the exceptional delay between the filing and entry of the final PFA order, not the procedure that led to the entry of the temporary PFA order in this case.
Since Ferko-Fox now defines the meaning of the word “proceeding” in §6107(b) to actually mean “hearing,” it will be interesting to see how each county in the commonwealth adjusts its local procedures to accommodate such ex parte hearings in light of the voluminous requests for temporary protection from abuse orders on a daily basis. In Philadelphia, an in camera review of temporary PFA petitions is no longer the standard way of proceeding.
Lisa Shapson is a family law attorney with Berner Klaw & Watson and co-chairs the divorce/equitable distribution committee of the Philadelphia Bar Association’s family law section.