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Nothing says “I love you” like a restraining order, according to the song by post-hardcore band Our Last Night. All kidding aside, a restraining order – a/k/a Protection From Abuse Act Order (“PFA”) – is serious business. No level of abuse should be tolerated. Any amount of abuse is too much. For this reason, the Pennsylvania legislature created the concept of a PFA, which creates an immediate right to have a person tossed in jail, if he violates either the temporary or “permanent” PFA.
A PFA can save a person’s life.
Unfortunately, abuse can go both ways. It is not uncommon for the PFA procedures in PA to be abused by those looking to go on the offense against a current (or former lover) or family member when no “abuse” or fear of abuse ever existed. So long as a person is willing to testify that another person (related by blood, prior sexual relations, or affinity) was physically abused or made serious threats, the entry of a PFA order is a near certainty unless the party defending the action has some pretty reliable evidence to the contrary. This is the case mostly because the courts err on the side of separating the parties and entering a PFA.
Meeting the threshold amount of evidence to obtain a PFA is easy for those willing to distort the truth. The term “abuse” is defined pretty liberally in the PFA statute:
23 Pa.C.S. § 6102 (2012)
§ 6102. Definitions.
(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). (Emphasis added).
As you can see, a PFA can be warranted where no physical harm results. Rather, an “attempt” to cause “fear” is enough. The definition is broad enough to include stalking or repeated interaction, which could mean having coffee at the same Starbucks as the Plaintiff, by chance or routine, every day, or driving past the plaintiff’s home if it’s on the defendant’s way to work every day, so long as that puts the plaintiff in “fear.” (Do you see how this well-meaning statute can be abused?)
The blind entry of a PFA can cause enormous prejudice to the defendant, who may have been innocent of any wrongdoing. A PFA can be used to wreak the following on an innocent person, who may face one or all of the following through an improper PFA:
Immediate eviction from his residence with the Plaintiff
Loss of freedom to travel down a street where the Plaintiff lives, even if it’s on the defendant’s way to work
Loss of the right to possess firearms even if the Defendant is and avid gun collector or merchant of weapons for a living
An order for child support even though no formal claim for support had been filed through the family courts
The court costs of the PFA (over $200),
The PFA can be served on the Defendant by sheriff or constable when the defendant is at work, ruining his reputation;
The PFA can be used for leverage in any custody, divorce, or support proceedings, and
The court may impose other relief that the court deems fair and just.
A PFA also creates a mark on a person’s permanent and public record. Although a PFA does not create a criminal record per se (unless one violates the PFA and is found guilty of indirect criminal contempt), a PFA does appear on the civil docket as a finding of abuse, which the world can see, because the civil docket is public record.
Most employers only search one’s criminal records via the state police website, but some also check the civil dockets for blemishes. We know for sure that those applying for section 8 housing will be subject to a search of PFA instances.
It is possible to have a temporary PFA expunged from the civil docket (which based on only one party’s side of the story, also called ex parte), but not a permanent PFA. This is because, expungement applies to the removal of charges and accusations, not actual findings of fact related to a full hearing where all parties may attend. Thus, if you are found to be an abuser following a hearing where you had a chance to testify, that record cannot be removed. Thus, to be clear, if you go to court on the PFA and lose such that it becomes permanent, then the permanent PFA cannot be expunged. An excellent analysis of this concept appears in a blog by Linda A. Kerns, who practices in Eastern PA.
For these reason, if you have had a PFA served on you, you should immediately seek experienced counsel to defend the action or get the opposing party to accept some deal short of permanent PFA. We get at least one call a month from some poor, unfortunate individual who decided to attend the hearing on the PFA alone (or with a family “friend” attorney who doesn’t handle these cases regularly) and came away from the process with a 3 year PFA against him.
Also keep in mind that, if you go to a hearing and lose, the PFA order is not the only public record, but rather, the testimony against you is also recorded and a transcript of the same can be ordered by anyone with a beef against you, so he or she can read about all the different forms of abuse according to at least one witness under oath.
We strongly recommend that you seek experienced counsel in defending against any PFA action. Out East, consider Linda A. Kerns, Esquire, who wrote about whether a PFA can be expunged. In Harrisburg and Millersburg, consider Shaffer & Engle, which did a nice analysis of “bad faith PFA“s on their blog. For all matters in Western PA including Pittsburgh (and all of Allegheny County and the surrounding Counties – Beaver, Butler, Washington, consider our Pittsburgh PFA lawyers.
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