Protection from Abuse order

A Protection from Abuse Order or PFA is a civil, quasi-criminal domestic violence protection order issued by a Family Division court in Pennsylvania to protect a person in a situation often involving alleged domestic violence, child abuse and neglect, assault, harassment, stalking, or sexual assault.

PFAs are issued pursuant to the Protection From Abuse Act, which was enacted by the Pennsylvania legislature on December 6, 1976, and has been amended frequently since that time. The act, as amended, appears at 23 Pa.C.S. 6101 et seq. The primary purpose of the act and its underlying policies is to afford quick and prompt protection and relief to victims of domestic violence. The statute was passed because in the Pennsylvania General Assembly's view, existing legal remedies were inadequate to deal with the serious problems caused by domestic violence and that a new way of proceeding would be more efficacious. See Snyder v. Snyder, 629 A.2d 977, 981 (Pa. Super. 1993).^[1]

As described by the Superior Court of Pennsylvania, "[t]o meet the special exigencies of abuse cases, acceptable procedures have been fashioned which suspend, temporarily, the due process rights of the alleged abuser and provid[e] for summary procedures for implementation of [PFA] orders." Ferko-Fox v. Fox, 68 A.3d 917, 921 (Pa. Super. 2013).^[2]

Once a PFA has been put in place by a Family Division court, alleged violations of a PFA are brought as a charge of indirect criminal contempt and can be heard either by a Family Division judge, or a Criminal Division judge.

Within 10 days of the filing of a PFA petition, a hearing will be held, at which the plaintiff must prove the allegations of abuse by a preponderance of the evidence. 23 Pa.C.S. 6107(a). It is reversible error for a court to dismiss a protection from abuse case without holding a hearing. Burke v. Bauman, 814 A.2d 206 (Pa. Super. 2002).^[9]

Notably, while PFA defendants are entitled to counsel in proceedings which arise from alleged violations of a PFA order, PFA defendants are not entitled to counsel in the initial hearing during which a PFA petition is evaluated. The distinction between civil final PFA hearings and the subsequent criminal character of charges which arise from alleged violations of such an order leads to confusion, even among legal professionals.

While the standard for the entry of a final PFA order is preponderance of the evidence (more than 50% likely to be true), crucially, the standard for the finding that a final PFA order has been violated is beyond a reasonable doubt (so convincing that no reasonable person would question the defendant's guilt).

An arrest for violation of the noneconomic provisions of a protection order may be made without a warrant upon probable cause whether or not the violation is committed in the presence of a police officer. 23 Pa.C.S. 6113(a).^[10] However, "the benefit that a [PFA plaintiff] may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its 'substantive' manifestations." Town of Castle Rock v. Gonzalez, 545 U.S. 748 (2005). Therefore, the United States Supreme Court ruled 7-2 in Castle Rock that a town and its police department could not be sued under 42 U.S.C. § 1983 for failing to enforce a restraining order.

The defendant in a PFA contempt proceeding is entitled to all criminal procedural safeguards, such as the right to counsel, the exclusion of inadmissible evidence, and the right to a speedy trial. Vito v. Vito, 551 A.2d 573 (Pa.Super. 1988).^[11] “Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both.” Bloom v. Illinois, 391 U.S. 194, 201 (1968).^[12] However, the Superior Court has upheld the legislature in its determination that defendants in PFA contempt proceedings are not entitled to jury trials. If the defendant is on parole, a finding of contempt constitutes a criminal conviction that can result in his incarceration as a parole violator. Dunkelberger v. Pennsylvania Bd. of Probation & Parole, 593 A.2d 8 (Pa.Cmwlth. 1991).

Under Commonwealth v. Baker, 722 A.2d 718, 721 (Pa. Super. 1998) (en banc):^[13]

"In considering the sufficiency of the evidence to support a finding of criminal contempt for failure to comply with a court order, four elements must be present:

1. the order must be definite, clear, specific and leave no doubt or uncertainty in the mind of the person to whom it was addressed of the conduct prohibited;
2. the contemnor must have had notice of the specific order or decree,
3. the act constituting the violation must have been volitional, and
4. the contemnor must have acted with wrongful intent."

Although the alleged victim in a PFA action is the plaintiff of a civil PFA petition, and thus, a PFA petition may be prosecuted by the plaintiff's private counsel, alleged violations which arise after a final PFA order is entered may not be prosecuted by the plaintiff's private counsel because "proceedings at law for criminal contempt are between the public and the defendant, and are not a part of the original cause." Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 445 (1911).^[14] See Young v. United States ex rel. Vuitton et Fils, 481 U.S. 787 (1987)^[15] and Commonwealth v. Janssen Pharmaceutica, Inc., 8 A.3d 267, 280 (Pa. 2010)^[16] ("[T]he reasoning is that the public interest -- and not the lawyer's private pecuniary benefit -- should dictate which type of outcome the government ultimately agrees to.").

Despite the prohibition against private-party indirect criminal contempt prosecutions articulated by the United States Supreme Court in Young, in Allegheny County, Pennsylvania, PFA plaintiffs' private attorneys are permitted to prosecute indirect criminal contempt actions which the District Attorney declines to pursue.^[17] Notwithstanding this allowance, an attorney who pursues a contempt prosecution that will affect their own financial interests is open to a charge of committing a felony under 18 U.S.C. § 208 [18 U.S.C. § 208 prohibits an executive branch employee from participating personally and substantially in a particular Government matter that will affect their own financial interests, as well as the financial interests of certain individuals with whom he has ties outside the Government.]. See Young at 805.

If a PFA defendant is charged with commission of a crime in addition to a charge of indirect criminal contempt, double jeopardy could bar the criminal prosecution of one or the other. United States v. Dixon, 509 U.S. 688 (1993). In determining whether double jeopardy applies, the issue is whether or not the offenses charged contain exactly the same elements. The analysis is extremely fact-intensive and must be done on a case-by-case basis to determine whether double jeopardy attaches. See Commonwealth v. Yerby, 679 A.2d 217 (Pa. 1996), and Commonwealth v. Decker, 664 A.2d 1028 (Pa.Super. 1995).

Importantly, indirect criminal contempt charges which coincide with other criminal charges emanating from the same act may implicate the PFA defendant's right against self-incrimination under the Fifth Amendment of the U.S. Constitution.

If the Court finds a PFA or indirect criminal contempt proceeding has been brought in bad faith, pursuant to 23 Pa.C.S. § 6117(b): “a court shall direct the individual to pay to the defendant actual damages and reasonable attorney fees. Failure to prove an allegation of abuse by a preponderance of the evidence shall not, by itself, result in a finding of bad faith.” See Courtney v. Courtney, 205 A.3d 318 (Pa. Super. 2019).^[18] (To support a finding of bad faith, the PFA plaintiff's conduct must be such as to "import a dishonest purpose." In other words, it must be shown that the PFA plaintiff brought a PFA or ICC action in some motive of self-interest, ill-will, fraud, dishonesty, or corruption.) Courtney at 322.

A petition to modify a final PFA order must be brought pursuant to Pa.R.C.P. 1901.8(c), which states: "If either party seeks a modification after a final judgment has been entered in a protection from abuse action, the party shall petition the court to modify the final order. The court shall enter an order granting or denying the petition following an appearance by the petitioner before the court".^[19]

Davis, J.A. (2001, August). Stalking Crimes and Victim Protection, CRC Press, 568 pages.

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