J-S11041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KAREN J. MANDLER : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

JEFFREY M. MANDLER, :

:

Appellant : No. 683 EDA 2015

Appeal from the Order February 24, 2015

in the Court of Common Pleas of Chester County,

Domestic Relations at No.(s): 2014-00928-PF

BEFORE: FORD ELLIOTT, P.J.E., OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 29, 2016

Jeffrey M. Mandler (“Jeffrey”) appeals from the Order granting Karen J. 

Mandler’s (“Karen”) request for a final Order for Protection from Abuse 

(“PFA”), pursuant to the Protection From Abuse Act, 23 Pa.C.S.A. § 6101 et 

seq. (“the PFAA”). We affirm.

The parties were married in 2005 and separated in 2013.1 Karen filed

 

1 The parties, who have one minor child, are presently involved in divorce 

litigation.
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a PFA Petition2on February 11, 2014, which resulted in a temporary PFA 

Order. The trial court conducted a hearing on January 29, 2015,3and 

entered a final PFA Order on February 24, 2015, pursuant to section 

6102(a)(5) of the PFAA.4 Jeffrey filed a Motion for reconsideration, which 

the trial court denied. Thereafter, Jeffrey filed a timely Notice of Appeal and 

a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Errors Complained 

of on Appeal. 

On appeal, Jeffrey raises the following issues for our review:

1. Did the trial court commit an error of law or abuse of 

discretion in permitting the introduction of evidence without 

notice to [Jeffrey]?

2. Did the trial court commit an error of law or abuse of 

discretion in permitting the testimony of a witness whose 

identity and the substance of her testimony was not disclosed 

to [Jeffrey] until the hearing commenced[,] and was credited 

by the trial court in reaching its decision?

 

2

In her Petition, Karen related an incident wherein Jeffrey became angered 

and grabbed her by the throat and shoved her against a dresser in the 

parties’ bedroom. The police came to the marital home, handcuffed Jeffrey, 

and placed him in the back of a police cruiser, where he began to kick the 

window divider. After they secured a promise from Jeffrey that he would 

leave Karen alone, the police departed. However, Jeffrey refused to leave 

Karen alone, resulting in her leaving the premises and re-contacting the 

police, due to his harassment. On prior occasions, Jeffrey had placed GPS 

trackers on Karen’s automobile, in order to spy on her. See PFA Petition, at 

Attachment A; see also Trial Court Order, 8/10/15, at 4 n.1 (unnumbered). 

3 The matter was initially scheduled for hearing on February 20, 2014, but 

the hearing was continued on several occasions.

4 The trial court denied relief under section 6102(a)(2). See Final PFA Order, 

2/24/15, at 2. 
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3. Did the trial court properly enter a PFA Order based on the 

testimony of [Karen] that [Jeffrey] abused [her,] as defined 

by the [PFAA]?

Brief for Appellant at 6 (some capitalization omitted). 

“The [PFAA] was created to protect the victims of domestic violence 

from their abusers. Its goal is not punishment of abusers for past violent 

behavior, but advance prevention of physical and sexual abuse.” Burke ex 

rel. Burke v. Bauman, 814 A.2d 206, 208 (Pa. Super. 2002) (internal 

citations omitted). The PFAA defines abuse, in relevant part, as follows:

“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:

***

(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).

23 Pa.C.S.A. § 6102(a)(2), (5). 

When a claim is presented on appeal that the evidence was not 

sufficient to support a PFA order, we review the evidence in the light most 

favorable to the petitioner and, granting her the benefit of all reasonable 

inferences, determine whether the evidence was sufficient to sustain the trial 

court’s findings by a preponderance of the evidence. Ferri v. Ferri, 854 

A.2d 600, 602 (Pa. Super. 2004). “A preponderance of the evidence is 
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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.’” Raker v. 

Raker, 847 A.2d 720, 724 (Pa. Super. 2004) (citation omitted); see also 23 

Pa.C.S.A. § 6107(a) (providing that the petitioner must prove the allegation 

of abuse by a preponderance of the evidence). In the context of a PFA 

order, we review the trial court’s legal conclusions for an error of law or 

abuse of discretion. Ferri, 854 A.2d at 602.

In his first issue, Jeffrey contends that, following the entry of the 

temporary PFA Order on February 11, 2014, he received no notification that 

Karen intended to rely on events that occurred subsequent to the entry of 

that Order at the final PFA hearing. Brief for Appellant at 17. Jeffrey asserts 

that he was denied due process of law by the admission of material evidence 

at the hearing that was not contained in the PFA Petition. Id. at 18-19. 

Jeffrey claims that Karen withheld information about her case from him for 

nearly eight months. Id. at 20. Jeffrey asserts that Karen should have 

amended her PFA Petition to incorporate the subsequent events. Id. at 21. 

In its Order, the trial court addressed Jeffrey’s first issue, set forth the 

relevant law, and concluded that it lacks merit. See Trial Court Order, 

8/10/15, at 2-3 n.1 (unnumbered). We agree with the sound reasoning of 

the trial court and affirm on this basis as to this issue. See id.; see also

Hood-O’Hara v. Wills, 873 A.2d 757, 761 (Pa. Super 2005) (wherein the 
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trial court noted that, pursuant to Pa.R.C.P. 1930.5(a), there is no discovery 

in PFA proceedings unless authorized by a court order). 

In his second argument, Jeffrey contends that the trial court erred by 

permitting Patty Kubicek (“Kubicek”) to testify regarding events which 

occurred subsequent to the temporary PFA Order, where Kubicek had not 

been interviewed by police, and Jeffrey’s counsel had only been given ten 

minutes to interview Kubicek prior to the hearing. Brief for Appellant at 24, 

25. Jeffrey additionally asserts that he “believed that [Kubicek’s] testimony 

was incorrect, but had no means to rebut it other than by description in his 

own testimony.” Id. 

In its Order denying Jeffrey’s Motion for reconsideration, the trial court 

addressed Jeffrey’s second argument, and determined that it is waived. See

Trial Court Order, 8/10/15, at 3 n.1 (unnumbered). We agree with the 

sound reasoning of the trial court and affirm on this basis as to this issue. 

See id.; see also Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in 

the lower court are waived and cannot be raised for the first time on 

appeal.”); Wills, 873 A.2d at 761 (concluding that appellant’s objection to a 

witness was waived, as he failed to object to the witness at the PFA 

hearing).5

 

5 The trial court further determined that, even if Jeffrey’s second issue had 

not been waived, it nevertheless lacks merit. See Trial Court Order, 

8/10/15, at 3 n.1 (unnumbered). We agree with the reasoning of the trial 

court. See id.; see also Wills, 873 A.2d at 761 (wherein the trial court 
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In his third issue, Jeffrey concedes that the trial court found, based on 

incidents that occurred on February 7, 2014 and March 24, 2014, that 

Jeffrey had “knowingly engag[ed] in a course conduct or repeatedly 

commit[ed] acts toward another person including following the person, 

without proper authority, under circumstances which place the person in 

reasonable fear of bodily injury.” Brief for Appellant at 26-27. However, 

Jeffrey points out that the trial court determined that Karen failed to prove 

that she had a reasonable fear of imminent serious bodily injury from 

Jeffrey, pursuant to 23 Pa.C.S.A. § 6102(a)(2). Id. at 26. Jeffrey argues 

that, “[i]f the evidence that was improperly admitted is removed from the 

record in this case, there is insufficient evidence to support [Karen’s] claims 

of abuse.” Id. at 27. Jeffrey claims that the only person that the trial court 

credited in making its decision was Kubicek, who testified regarding events 

that occurred after the filing of the PFA Petition. Id. at 27-28 

(unnumbered). Jeffrey asserts that “[t]here is no finding in the original 

proceedings to support a credibility determination of one party over the 

other[,] and thus no preponderance of the evidence to support the entry of 

the [final PFA Order].” Id. at 28 (unnumbered). Jeffrey contends that, for 

this reason, Karen could not prove her entitlement to a final PFA Order, and 

her Petition should have been dismissed. Id. 

 

noted that, pursuant to Pa.R.C.P. 1930.5(a), there is no discovery in PFA 

proceedings unless authorized by a court order). 
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In its Order, the trial court addressed Jeffrey’s third issue, pertaining 

to section 6102(a)(5), and concluded that it lacks merit. See Trial Court 

Order, 8/10/15, at 4 n.1 (unnumbered). We agree with the sound reasoning 

of the trial court and affirm on this basis as to this issue. See id. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/29/2016
1. Plaintiff was permitted to offer facts not in the original Petition; 

2. Plaintiff failed to identify witnesses prior to the hearing; 

3. Defendant was not given ample time to present his case; and 

4. Plaintiff failed to prove her case by a preponderance of the evidence. 

Plaintiff filed a PF A Petition against defendant and a hearing on the matter was held on 

February 27, 2015. Plaintiffs request for a Final Order for Protection of Abuse was granted 

pursuant to §6102(a)(5). Her request for a Final Order for Protection of Abuse pursuant to · §6102(a)(2) was denied. Defendant thereafter filed a Motion to Reconsider the court's decision. , 

Specifically, he claims he in entitled to relief because: 

J. 

BY THE COURT: 

of counsel, it is hereby ORDERED and DECREED that Defendant's Motion is DENIED.1 

Motion for Reconsideration, Plaintiff's Answer to Motion for Reconsideration, and the arguments 

AND NOW, this / ~ day of August, 2015, upon consideration of Defendant's 

ORDER 

,·-··~ ~--· .· --· 

. ' 

i"":"; : ... ~·.: . 

Douglas W. Olshin, Esquire, Attorney for the Plaintiff ·,,: ··, · Laurie Wyche-Abele, Esquire and Penelope A. Boyd, Esquire, Attorneys}o(the Defendant 

_,_; .... 

'. ·' 

....... -. ... · .•. - 

Defendant : PROTECTION FROM AB.USE 

JEFFREY M. MANDLER NO. 2014-00928 

V. CIVIL ACTION - LAW 

Plaintiff CHESTER COUNTY, PENNSYLVANIA 

KAREN J. MANDLER IN THE COURT OF COMMON PLEAS 

J-- S{ (CL[{-/ l(l 

SEf\tT 

Circulated 03/02/2016 02:55 PM
Raker, 847 A.2d at 726. See Custer v. Cochran, 933 A.2d 1050, 1059 n. 11 

(relying on Raker and stating that "[i]t is proper for a trial court to admit evidence 

of prior abusive acts not raised in the PF A petition"). 

In light of the protective purposes of the act, it was within the trial 

court's discretion to hear any relevant evidence that would assist it 

in its obligation to assess the appellee's entitlement to and need for 

a protection from abuse order. If the trial court found the testimony 

to involve events too distant in time to possess great relevance to 

the case, it could certainly have assigned less weight to the 

testimony. However, it was not an abuse of discretion for the trial 

court to hear the evidence. Past abusive conduct on the appellant's 

part was a crucial inquiry necessary for entry of a proper order. 

Miller v. Walker. 445 Pa.Super. 537, 665 A.2d 1252 at 1259. Moreover, the 

Miller court held that it was not an abuse of discretion for the court to consider 

evidence of abuse that occurred six years earlier. The court reasoned that: 

Questions concerning the admission or exclusion of evidence are 

within the sound discretion of the trial court and may be reversed 

on appeal only when a clear abuse of discretion was present. Soda 

v. Baird. 411 Pa.Super. 80, 600 A.2d 1274 (1991). In Snyder v. 

Snyder. [427 Pa.Super. 494, 629 A.2d 977 (1993) ], supra, the 

court held that a person filing a protection from abuse petition will 

not be "rigorously limited to the specific allegation of abuse found 

in the Petition." 427 Pa.Super. at 502, 629 A.2d at 981. The court 

further held that in light of the purpose of the Act to "prevent 

imminent harm to abused person(s)," some flexibility must be 

allowed in the admission of evidence relating to past acts of abuse. 

Id. at 503-04, 629 A.2d at 982. 

"In the context of a PF A case, the court's objective is to determine whether the 

victim is in reasonable fear of imminent serious bodily injury .... " Raker v. Raker. 

847 A.2d 720, 725 (Pa. Super. 2004). The intent of the alleged abuser is of no 

moment. Id. In discussing the appellant's argument concerning incidents not 

contained in the petition and too remote in time, the Raker court stated: 

See Defendant's Motion for Reconsideration. He claims that as a result of the above, he was not 

able to adequately defend against the allegations made by plaintiff. 

With regard to defendant's claim that plaintiff was permitted to offer facts not in the 

original Petition, the Pennsylvania Superior Court has stated: 
See Defendant's Motion for Reconsideration, para. 15. Defendant, however, was able to address 

these issues during the hearing. He testified that there was no damage to either vehicle as a . 

result of the incident. See N.T. 1/29/15, p. 82. He also testified about the distance between the 

driveway and the cul de sac and about all obstacles obstructing the view in that area. See N.T. 

1/29/15, p. 91. He, therefore, was able to offer evidence rebutting the testimony offered by 

plaintiff and her witnesses. 

Defendant also claims that he was prejudiced in his defense of this matter because 

plaintiff failed to identify two witnesses prior to the hearing. To remedy this situation, defense 

counsel was permitted to speak to the witnesses prior to them taking the stand. Defendant made 

no objections to the witnesses being called after having the chance to talk to them. Thus, 

defendant waived his right to raise this issue now. 

Even if the court were to address the merits of this issue, defendant still would not be 

entitled to relief. With regard to the testimony of Patty Kubicek, as explained above, defendant 

largely corroborated the witness's testimony. Further, he was able to rebut her testimony with 

his own testimony. The court finds, therefore, that he was not prejudiced by the court allowing 

her to testify. 

The court also finds that defendant was not prejudiced by the court permitting the · plaintiff to introduce the testimony of Susan Terranova. First, as stated above, defense counsel 

was given time to talk to her prior to her taking the stand. There were no objections to her 

testimony afterward. Second, Ms. Terranova merely testified that defendant attended a party that 

plaintiff was also attending and that she did not witness any poor behavior by defendant. Her 

testimony did not help plaintiff establish her case against the defendant. Consequently, 

defendant cannot say he was prejudiced by the introduction of her testimony at the hearing. 

1. It is not possible to clearly see the driveway and turnaround at night from the cul de sac; 

2. The distance between the cul de sac and the turnaround was far greater than the witness 

admitted; 

3. The defendant, who holds title to the vehicle and who carries the insurance on it, had not 

been notified of any claim of damage to the vehicle. 

Buchhalter v. Buchhalter, 959 A.2d 1260, 1263 -1264 (Pa. Super. 2008). The court believes that 

events occurring after the Petition was filed should not be treated any differently than events 

occurring prior to the Petition being filed. In fact, it is even more crucial for the court to hear 

any such evidence, as defendant's actions after the Temporary PFA Order was entered offers 

insight into whether a PF A Order is currently necessary for the protection of the plaintiff. 

Further, defense counsel conceded that the evidence could be admitted to show that the conduct 

put plaintiff in fear of bodily injury. See N.T. 1/29/15, p. 10. Further, defendant corroborated all 

of the events he claims plaintiff should not have been permitted to raise. While he had a 

different perception/explanation of them, he admitted that they had, in fact, occurred. 

Defendant claims that, due to the lack of notice, he was unable to defend against the 

allegations made against him. He claims that if he had notice of these allegations, he would have 

been able to offer evidence the rebut same. Specifically, he would offer evidence to show: 
Defendant next claims that he was not given ample time to present his case. He claims 

that, if he had additional time, he would have offered additional testimony regarding the distance 

of the garage and the cul de sac. See Motion for Reconsideration, para. 27. He bases this claim 

on the fact that the court indicated that the proceedings could not go beyond 5:30 that day. The 

court notes that while the parties were informed that the proceedings could not go beyond 5:30 

that day, they were never told that the hearing would not be continued to another day if 

necessary. See N.T. 1/29/15, p. 76. Further, as stated above, defendant did, in fact, testify about 

the distance between the driveway and the cul de sac. See N.T. 1/29/15, p. 91. Since this 

question was already asked and answered, no additional time on the subject was needed. In · 

addition, after defendant finished testifying, he rested his case after indicating that he had no . 

other witnesses to present. There was no indication by defense counsel that defendant wished to 

present additional evidence and needed additional time in which to do so. The court finds, based 

on the record, that defendant had ample time to present his case. 

Finally, defendant claims that plaintiff failed to prove her case by a preponderance of 

the evidence. The court disagrees. Plaintiff testified that on February 9, 2014, she and defendant 

got into a fight. During the incident, defendant pushed her by the neck into a bureau and police · were called. After the police left, he went after her again. He followed her around the house and . 

called her names. She left the house and went to the police station. On three other occasions, • 

she found GPS tracking devises on her car. Defendant was charged with stalking and harassment 

as a result. He pleaded guilty to harassment on December 10, 2014. On March 24, 2014, 

defendant was waiting for plaintiff when she returned home from the airport. He approached her 

car and banged on her window with his fist. He then began tapping on the window with pruning 

shears while laughing at her. He also hit her car two or three times with his car and pushed it , 

back as far as it would go. Based on all the evidence presented at the hearing, the court finds that 

plaintiff did, in fact, prove her case by a preponderance of the evidence and that a Final Order for · Protection from Abuse was properly granted .. 

Based on the foregoing, defendant's Motion for Reconsideration is denied.