No PFA Restraining Order with a Hearing, Says PA Court

One of the fundamental rights guaranteed by our Constitution is due process, the right to notice and an opportunity to be heard in court. Laws that impair due process are narrowly construed, but they do exist, such as the law that authorizes temporary protection from abuse (PFA) restraining orders. Under Pennsylvania law, the defendants are not entitled to receive notice or an opportunity to be heard before a temporary PFA order is issued. In order to protect victims of physical abuse, defendants can be evicted from their homes and restricted from contacting their spouses and/or children, without a right to notice and opportunity to defend themselves  … but only for ten days or so.

So, when some counties in our state implemented a procedure to issue PFA orders against defendants without even hearing testimony from the plaintiffs, our appellate courts balked. The Superior Court recently issued a decision in Ferko-Fox v. Fox, 2013 PA Super 88 (April 17, 2013), a county in which temporary PFA orders were issued according to an administrative procedure, without any testimony by the plaintiffs who sought protection.

In Ferko-Fox, the wife obtained a temporary PFA order through an administrative procedure, after which a hearing was scheduled six days later. The wife requested a continuance to hire legal counsel, and the husband requested the right to remove his clothing from the marital residence from which he was evicted. The hearing was postponed five weeks, and then it was not completed in the allotted time. A month later, the parties requested another postponement, which was denied. Still, the temporary PFA order remained in effect for a total of six months before the final hearing was completed, in which a final PFA order was entered for a period of 18 months.

Husband appealed the final PFA order, arguing that the Lancaster county procedure did not comply with the legal requirements to conduct a hearing before issuing the temporary PFA order, and to require wife to prove, within 10 days thereafter, by a preponderance of evidence that she was abused. The Superior Court agree with Husband that the issue was not moot, merely because a subsequent final PFA order was entered, because the issue was too important to be denied appellate review.

Looking to a U.S. Supreme Court precedent, which dealt with Social Security benefits procedure, the Superior Court noted that a defendant cannot be “made whole” if justice is delayed in a PFA proceeding, as it can be awarding retroactive benefits in a Social Security proceeding. A PFA defendant who is evicted from his home and prevented from contacting his spouse and children for an extended period of time cannot be compensated, in money or otherwise, for the delay of a hearing.

The Court in Ferko-Fox also reviewed well-established law, which provides that the court may not delay the final PFA hearing beyond the ten day deadline established by law. This deadline is a separate provision of the law, which was not implicated in this case, but buttressed the Superior Court’s holding that procedural due process requirements must be strictly enforced. In fact, the Court held that the trial court had not erred by granting Wife’s initial request for a postponement to obtain legal counsel.

The Ferko-Fox Court held that the procedural error was not grounds for reversal of the final PFA order that was entered after the six month delay. A dissenting opinion was filed by one of the judges, who opined that a verified petition was sufficient to protect the defendant’s rights in issuing a temporary PFA order.

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