J. S58040/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

D.G.B., ON BEHALF OF N.G.A. :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

W.K., : No. 734 WDA 2018

:

 Appellant :

Appeal from the Order, April 18, 2018,

in the Court of Common Pleas of Elk County

Domestic Relations Division at No. 2018-269

BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 13, 2018

W.K. (“appellant”) appeals from the final protection from abuse order 

(“PFA Order”) entered against him in the Court of Common Pleas of Elk 

County on April 18, 2018. After careful review, we affirm.

The record reflects that on April 16, 2018, appellee filed with the trial 

court a petition for protection from abuse on behalf of N.G.A.,

1

in which she 

alleged that appellant removed N.G.A. from his bicycle by grabbing his neck. 

(Petition for PFA, 4/16/18 at ¶ 11.) The trial court entered a temporary PFA 

order on April 16, 2018, and scheduled a hearing for a final PFA order. (See

temporary PFA order, 4/16/18.) On April 18, 2018, the trial court held a 

hearing for a final PFA order. Appellant did not appear for the hearing, and 

 

1 Appellant and appellee are N.G.A.’s biological parents.
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the trial court only heard testimony from appellee. (See notes of testimony, 

4/18/18 at 1-9.) Following the hearing, the trial court entered the final PFA 

order against appellant in which appellant was, inter alia, evicted and 

excluded from appellee’s residence and appellee was granted full temporary 

custody of N.G.A. (Final PFA order, 4/18/18 at 1-2.) Additionally, the order 

permits appellee to authorize supervised visits between appellant and N.G.A. 

(Id. at 2.) 

Appellant filed a notice of appeal with this court on May 14, 2018. 

Appellant simultaneously filed a concise statement of errors complained of 

on appeal pursuant to Pa.R.A.P. 1925(b). On June 20, 2018, the trial court 

issued an order in lieu of a formal opinion pursuant to Pa.R.A.P. 1925(a).

Appellant raises the following issues for our review:

I. Whether the trial court erred as a matter of 

law in proceeding with the protection from 

abuse hearing when the appellant was not 

present, when said appellant was in the Elk 

County Jail, which was connected to the 

courthouse?

II. Whether the trial court erred as a matter of 

law in granting the protection from abuse when 

the only evidence presented was the testimony 

of [appellee], with no supporting 

documentation with respect to any danger 

concerning the minor child?

III. Whether the trial court erred in ordering a 

three (3) year protection from abuse on the 

minor child against appellant, and requiring 

supervised visitation to be controlled by 

[appellee], when appellant had primary 

custody of said minor child?
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Appellant’s brief at 4 (full capitalization omitted).

“In the context of a PFA order, we review the trial court’s legal 

conclusions for an error of law or abuse of discretion.” Drew v. Drew, 870 

A.2d 377, 378 (Pa.Super. 2005) (citation omitted). The purpose of the 

Protection From Abuse Act, 23 Pa.C.S.A. §§ 6101-6122 (“PFAA”), is not to 

punish abusers for past violent behavior, but to advance the prevention of 

domestic violence from abusive perpetrators. Fonner v. Fonner, 731 A.2d 

160, 161 (Pa.Super. 1999). This court has emphasized that “[t]he purpose 

of the [PFAA] is to protect victims of domestic violence from those who 

perpetrate such abuse, with the primary goal of advance prevention of 

physical and sexual abuse.” Buchhalter v. Buchhalter, 959 A.2d 1260, 

1262 (Pa.Super. 2008). Under the PFAA, the petitioner bears the burden of 

proving the allegations of abuse by a preponderance of the evidence. See

23 Pa.C.S.A. § 6107(a). For proceedings where, as here, the petitioner 

commences proceedings under the PFAA, the PFAA defines “abuse” as: 

“[k]nowingly 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.” 23 Pa.C.S.A. § 6102(a)(5).

In his first issue on appeal, appellant contends that the trial court 

erred when it held the final PFA hearing in appellant’s absence, thereby 

violating appellant’s due process rights. (Appellant’s brief at 11.) In his 
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argument, appellant relies on this court’s decision in Plowman v. 

Plowman, 597 A.2d 701 (Pa.Super. 1991). Id. Specifically, appellant 

argues that the trial court violated the Plowman court’s application of 

Pa.R.Civ.P. 1915.9, which prohibits judgment by default or on the pleadings 

in custody proceedings. (Appellant’s brief at 14, citing Pa.R.Civ.P. 1915.9.) 

Appellant also quotes Plowman as follows: “While this rule ostensibly 

applies to final orders of custody, Rule 1915.9, Explanatory Note, we find it 

applicable where the result of any order substantially affects the rights of 

either parent, or the minor children.” (Appellant’s brief at 14, quoting 

Plowman, 597 A.2d at 706.)

Appellant’s reliance on Plowman is misplaced. Plowman was 

decided in the context of a father’s allegation that “he was denied procedural 

due process since he was not afforded a full evidentiary hearing” before the 

trial court permitted the child to relocate to Maryland with his mother. 

Plowman, 597 A.2d at 705. Here, the record indicates that at 1:30 p.m. on 

April 16, 2018, the Elk County Sherriff’s Office served appellant at the Elk 

County Jail with a copy of the notice of the April 18, 2018 final PFA hearing. 

Although appellant asserts that he requested to appear at the hearing, there 

is no evidence of record to support that appellant requested to be 

transported from the Elk County Prison to the courthouse so that he may 

appear for the final PFA hearing, and the trial court found as such. 

Moreover, the PFAA only requires that a defendant be given notice of a final 
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PFA hearing. See 23 Pa.C.S.A. § 6107(a). Accordingly, appellant’s first 

issue is without merit.

In his second issue on appeal, appellant avers that the evidence was 

not sufficient to warrant the trial court granting a PFA order. (Appellant’s 

brief at 16-17.) Within his argument, appellant appears to raise two 

arguments. The first of appellant’s arguments alleges that appellee’s 

testimony was not credible, as it was based wholly on “hearsay and 

speculation.” (Id.) Appellant further contends that the conduct of which 

appellant was accused did not rise to the level of abuse contemplated by the 

PFAA and that appellant’s conduct was “parental discipline and not abuse.” 

(Id. at 17.)

This court reviews sufficiency of the evidence claims pertaining to 

protection from abuse hearings as follows:

When a claim is presented on appeal that the 

evidence is not sufficient to support an order of 

protection from abuse, we review the evidence in the 

light most favorable to the petitioner and granting 

her the benefit of all reasonable inference[s], 

determine whether the evidence was sufficient to 

sustain the trial court's conclusion by a 

preponderance of the evidence. This Court defers to 

the credibility determinations of the trial court as to 

witnesses who appeared before it. Furthermore, the 

preponderance of the evidence is defined as the 

greater weight of the evidence, i.e., to tip a scale 

slightly is the criteria or requirement for 

preponderance of the evidence.
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Ferko-Fox v. Fox, 68 A.3d 917, 926-927 (Pa.Super. 2013), quoting 

Thompson v. Thompson, 963 A.2d 474, 477 (Pa.Super. 2008) (quotations 

and citations omitted).

As noted by the Ferko-Fox court, we defer credibility determinations 

to the trial court. Accordingly, because appellant’s argument rests solely on 

the credibility of appellee’s testimony, which we are not entitled to reweigh,

we find that appellant’s first sufficiency of the evidence argument is without 

merit. 

Appellant next takes exception to the trial court’s conclusion that his 

alleged conduct rose to the level of abuse contemplated by the PFAA. 

(Appellant’s brief at 17.) The PFAA defines “abuse,” in relevant part, as the 

“occurrence of one or more of the following acts between family or 

household members . . . . (4) Physically . . . abusing minor children.” 

23 Pa.C.S.A. § 6102(a)(4).

During the final protection from abuse hearing, appellee testified as 

follows:

And [N.G.A.] was riding his bike sometime during 

this altercation right before, and [appellant] told him 

to get off the bike. And [N.G.A.] didn’t. And 

[appellant] grabbed [N.G.A.] by his throat and took 

him off the bike. And I have a picture here that I 

took, and I brought him to the State Police and 

asked if that was also documented when they 

arrested [appellant] on the charges against his wife, 

since it was the same night. And they said that 

[N.G.A.] had a hoody on and a big heavy coat and 

he was really scared from what he [had] just seen, 
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and he didn’t say anything. But they didn’t see the 

mark on his neck because of what he was wearing.

I got a call Sunday morning to pick [N.G.A.] up, and 

when he got on his booster seat, he looked up and I 

[saw] on his neck. And I asked [N.G.A.] what 

happened, and he told me his dad grabbed him by 

the throat and ripped him off his bike because he 

wouldn’t get off the bike right when [appellant] told 

him to get off the bike.

Notes of testimony, 4/18/18 at 5-6.

Clearly, this testimony established the context in which the PFA order 

was sought. The testimony involved acts of violence committed by appellant 

toward his wife in the presence of the children, as well as his failure to 

further control his anger toward N.G.A. Appellee further provided 

photographic evidence of the mark she discovered on N.G.A.

Based on this testimony, when viewed in the light most favorable to 

appellee, we find that appellee presented sufficient evidence to warrant the 

trial court’s granting a PFA order. Therefore, appellant’s second issue is 

without merit. 

Finally, appellant avers that the trial court’s granting of a three-year 

PFA order was excessive and constitutes an error of law. (Appellant’s brief 

at 18-19.) Appellant further argues that the custody implications brought 

forth by the final protection from abuse order were also excessive. (Id. at 

19.)

The PFAA provides, in relevant part:
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(a) General rule.--The court may grant any 

protection order or approve any consent 

agreement to bring about a cessation of abuse 

of the plaintiff or minor children. The order or 

agreement may include:

. . . .

(4) Awarding temporary custody of or 

establishing temporary visitation rights 

with regard to minor children. In 

determining whether to award 

temporary custody or establish 

temporary visitation rights pursuant to 

this paragraph, the court shall consider 

any risk posed by the defendant to the 

children as well as risk to the plaintiff. 

The following shall apply:

(i) A defendant shall not be 

granted custody, partial custody 

or unsupervised visitation where 

it is alleged in the petition, and 

the court finds after a hearing 

under this chapter, that the 

defendant:

(A) abused the minor 

children of the parties or 

poses a risk of abuse 

toward the minor children 

of the parties; or

(B) has been convicted of 

violating 18 Pa.C.S. 

§ 2904 (relating to 

interference with custody 

of children) within two 

calendar years prior to the 

filing of the petition for 

protection order or that 

the defendant poses a risk 

of violating 18 Pa.C.S. 

§ 2904.
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(ii) Where the court finds after a 

hearing under this chapter that 

the defendant has inflicted 

abuse upon the plaintiff or a 

child, the court may require 

supervised custodial access by a 

third party. The third party must 

agree to be accountable to the 

court for supervision and 

execute an affidavit of 

accountability.

(iii) Where the court finds after a 

hearing under this chapter that 

the defendant has inflicted 

serious abuse upon the plaintiff 

or a child or poses a risk of 

abuse toward the plaintiff or a 

child, the court may:

(A) award supervised 

visitation in a secure 

visitation facility; or

(B) deny the defendant 

custodial access to a child.

(iv) If a plaintiff petitions for a 

temporary order under section 

6107(b) (relating to hearings) 

and the defendant has partial, 

shared or full custody of the 

minor children of the parties by 

order of court or written 

agreement of the parties, the 

custody shall not be disturbed 

or changed unless the court 

finds that the defendant is likely 

to inflict abuse upon the 

children or to remove the 

children from the jurisdiction of 

the court prior to the hearing 

under section 6107(a). Where 
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the defendant has forcibly or 

fraudulently removed any minor 

child from the care and custody 

of a plaintiff, the court shall 

order the return of the child to 

the plaintiff unless the child 

would be endangered by 

restoration to the plaintiff.

(v) Nothing in this paragraph shall 

bar either party from filing a 

petition for custody under 

Chapter 53 (relating to custody) 

or under the Pennsylvania Rules 

of Civil Procedure.

(vi) In order to prevent further 

abuse during periods of access 

to the plaintiff and child during 

the exercise of custodial rights, 

the court shall consider, and 

may impose on a custody 

award, conditions necessary to 

assure the safety of the plaintiff 

and minor children from abuse.

. . . . 

(d) Duration and amendment of order or 

agreement.--A protection order or approved 

consent agreement shall be for a fixed period 

of time not to exceed three years. The court 

may amend its order or agreement at any time 

upon subsequent petition filed by either party.

23 Pa.C.S.A. § 6108(a)(4)(A)(iii)-(iv); (d). As noted above, within the 

context of PFA orders, we review a trial court’s legal conclusions for abuse of 

discretion. See Drew, 870 A.2d at 378. Abuse of discretion is defined as 

“more than just an error in judgment.” Commonwealth v. Walsh, 36 A.3d 

613, 620 (Pa.Super. 2012), quoting Commonwealth v. Jackson, 785 A.2d 
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117, 118 (Pa.Super. 2001), appeal denied, 798 A.2d 1288 (Pa. 2002). 

Rather, the record must reflect that “the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill-will.” Id.

Here, after reviewing the record, we find that the trial court’s legal 

conclusions and granting of the PFA order are devoid of manifestly 

unreasonable judgment, partiality, prejudice, bias, or ill-will. To the 

contrary, the trial court acted within the limits established by the plain 

language of the PFAA. Accordingly, appellant’s third issue is without merit.

Order affirmed.

Olson, J. joins this Memorandum.

Murray, J. concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2018