The Pennsylvania Superior Court recently rendered an Opinion in the case of Ferko-Fox v. Fox, 2013 Pa.Super 1888. This Opinion is important from the standpoint that it affirms the requirement listed under 23 Pa.C.S.A. §6107(b)(1) that a Protections From Abuse petition requires an ex parte hearing to determine if there is immediate and present danger requiring immediate, temporary relief.
In the Fox case, the wife obtained a temporary Protection From Abuse evicting the husband from the marital residence, as well as prohibiting any communication between the two of them. The husband challenged the temporary PFA on the basis that § 6107(b) requires that the trial court conduct an ex parte hearing for the purpose of protecting the respondent’s due process rights. Specifically, the court found that when the PFA Act permits trial courts to temporarily suspend a “respondent’s rights and liberties based upon the petitioner’s demonstration of an immediate and present danger of abuse at an ex parte proceeding.” As husband argues, what this essentially means is that a basic review of the verified Petition is insufficient to grant temporary relief without an ex parte hearing being done by the Court.
The ex parte hearing is important in the PFA process because it gives the trial court the opportunity to examine the petitioner in person and under oath; this face-to-face examination of the individual allows the Court to explore facts and circumstances beyond that of the contents of the Petition. The petitioner’s motive may be examined and discerned by an in-person examination and questioning by a Judge. It would also give the presiding Judge the opportunity to examine physical evidence (or the absence thereof) of violence such as, “scratches, wounds and bruises.”
Consequently, the Superior Court found that Lancaster County’s informal practice of an in-camera review of the Petition prior to the entry of a temporary order was insufficient to protect the respondent and to ensure justice in the application of the act. The Superior Court’s Opinion conclusively holds that “absent an exigent circumstance that prevents a petitioner’s appearance, due process mandates a trial court convene an ex parte hearing prior to entering a temporary PFA pursuant to §6107(b)”.
The practical application of this holding is that each and every Protection From Abuse requesting temporary relief that is filed in Pennsylvania will now have an initial ex parte hearing on the record before a determination as to whether a Temporary Order will be entered. This will certainly increase the work load of court reporters since the Protection From Abuse Act requires entry of a final Order within ten (10) days of the filing of the Petition (except where a continuance is granted) and thus requiring significant turnaround of the transcript of the hearing for use at trial.
From a practice perspective, counsel for PFA Petitioners and Respondents will need to be vigilant in obtaining the record from the Court and it is fair to assume that pro se litigants will not have the knowledge or wherewithal to either know about the necessity of having a transcript, nor how to go about obtaining it. Like any change to a standard practice, there will be some adjustment to this new procedure, but I would assume that the courts, court reporters, and counsel will develop as efficient a process as possible to address the added requirement of an ex parte hearing and transcript. An unintended consequence of this rule may also be that temporary orders will be much more judiciously entered in some Counties than perhaps they were before. The requirement of an immediate and present danger of abuse will be much more closely scrutinized in situations in which the facts are much less clear than in more obvious situations.