J. A11001/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

M.A.D. :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

J.F.D., JR., : No. 3211 EDA 2014

:

 Appellant :

Appeal from the Order Entered October 21, 2014,

in the Court of Common Pleas of Montgomery County

Civil Division at No. 2014-25438

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 4, 2015

J.F.D., Jr. (“Father”), appeals from the order entered against him 

pursuant to a petition brought under the Protection From Abuse Act 

(“PFAA”), 23 Pa.C.S.A. § 6101 et seq., by M.A.D. (“Mother”) on behalf of 

the parties’ minor children. We affirm.

We adopt the factual and procedural history of this case as 

summarized by the trial court:

On September 9, 2014, Plaintiff, Mother, filed 

a petition for protection from abuse against Father 

on behalf of the parties’ minor children, B.D. and 

P.D. In said petition Mother avers that on 

September 5, 2014, her youngest daughter, P.D., 

told her that on the evening prior, Father was “very 

angry” with B.D. for running outside while naked and 

Father “threw B.D. to the floor and slapped B.D. 

across the face.” (Hereinafter “September 4, 2014 

incident”). Mother also avers that B.D. told Mother 

the same story regarding the September 4, 2014 
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incident that was relayed to her by P.D. Additionally, 

Mother provided information regarding prior 

incidents of abuse. Mother avers that both children 

are scared of Father and don’t wish to return to his 

apartment. On the same date, the Honorable 

Patricia E. Coonahan, issued an Order appointing a 

child advocate to the minor children, in addition to a 

temporary PFA Order on behalf of the children, which 

directed that Defendant “shall not abuse, harass, 

stalk, or threaten” the children and also directed 

Defendant to have “no contact” with the children. 

After two continuances, one of which was to allow 

the child advocate time to interview the children, a 

hearing on the final PFA was held before this Court 

on October 21, 2014. 

During the hearing, this Court heard testimony 

from Mother, Father, and B.D. regarding the 

September 4, 2014 incident, as well as other prior 

incidents of abuse.

. . . .

At the conclusion of the hearing, this Court 

explained to both parties that it was impressed that 

B.D. was in fear of imminent serious bodily injury 

and entered a final PFA on behalf of the children[1] 

which directs that Father, for a period of one (1) 

year, “shall not abuse, stalk, harass, threaten or 

attempt to use physical force that would reasonably 

be expected to cause bodily injury to Plaintiffs,” and 

further directs Father to participate in an anger 

management program for a period of six (6) months, 

as well as, three (3) joint sessions with B.D. and 

B.D.’s therapist. Said Order did not prohibit Father 

from having contact with his children.

On November 5, 2014, Father filed a Motion for 

Reconsideration of the Final PFA Order, which this 

Court denied in an Order, dated November 13, 2014.

 

1 The fact that the order covers both children and not just B.D. has not been 

challenged on appeal.
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Trial court opinion, 12/15/14 at 1-2, 4-5 (references to footnotes omitted).

Father filed a timely notice of appeal on November 18, 2014. On 

November 24, 2014, the trial court entered an order directing Father to file 

his concise statement of errors complained of on appeal within 21 days. On 

December 9, 2014, Father timely complied.2

I. Did the Trial Court commit an error of law by 

entering an Order which fails to properly 

consider the statutory definition of abuse set 

forth at 23 Pa. C.S. §6102(a)(2) in conjunction 

with the statutory definition of serious bodily 

injury set forth at 18 Pa. C.S. §2301 and 

incorporated into the Protection from Abuse 

Act pursuant to 23 Pa.C.S. §6102(b), prior to 

entering a Final Protection from Abuse Order 

against the Defendant?

II. Did the Trial Court abuse its discretion by 

entering an Order that the child’s testimony 

that the Defendant kicked a trashcan that the 

child was not near, slapped her, pushed her, 

shook her bunk bed and caused her to sustain 

a rug burn on her knee established by a 

preponderance of the evidence that the 

Defendant’s actions placed the child in 

reasonable fear of imminent serious bodily 

injury which creates a substantial risk of death 

or which causes serious, permanent 

disfigurement, or protracted loss or 

impairment of the function of any bodily 

 

2 This case is a Children’s Fast Track appeal as defined by Pa.R.A.P. 102, 

which requires the concise statement of matters complained of on appeal to 

be contemporaneously filed with the notice of appeal. See

Pa.R.A.P. 1925(a)(2) and 905(a)(2). Father failed to file his Rule 1925(b) 

concise statement with his notice of appeal; however, he did file a 

Rule 1925(b) statement in compliance with the trial court’s subsequent order 

to do so. As no one objected to the late filing and there is no claim of 

prejudice, we proceed to review the merits. See In re K.T.E.L., 983 A.2d 

745, 748 (Pa.Super. 2009). 
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member or organ which is statutorily 

necessary to enter a Final Protection from 

Abuse Order[?]

III. Did the Trial Court abuse its discretion in 

entering an Order finding that the child’s 

testimony that she was afraid of the Defendant 

established by a preponderance of the 

evidence that the Defendant’s actions placed 

the child in reasonable fear of imminent 

serious bodily injury, defined as bodily injury 

which creates a substantial risk of death or 

which causes serious, permanent 

disfigurement, or protracted loss or 

impairment of the function of any bodily 

member or organ which is statutorily 

necessary to enter a Final Protection from 

Abuse Order[?]

IV. Did the Trial Court abuse its discretion in 

entering a one-year Final Protection from 

Abuse Order based upon the limited, 

questionable testimony of the child regarding 

the actions of the Defendant which did not 

meet the statutory definition of abuse set forth 

at 23 Pa. C.S. §6102(a)(2) and 18 Pa. C.S. 

§2301[?]

V. Did the Trial Court abuse its discretion in 

denying the Defendant’s Motion for 

Reconsideration which provided the court with 

a clear delineation of the applicable statutes 

and case law which justify a reversal of the 

court’s October 21, 2014 Final Protection from 

Abuse Order[?]

Father’s brief at 10-11.

Father’s first four issues basically argue the evidence was insufficient 

to support the trial court’s finding that B.D. was placed in reasonable fear of 

imminent serious bodily injury under Section 6102(a)(2) of the PFAA. 
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“In the context of a PFA order, we review the trial court’s legal 

conclusions for an error of law or abuse of discretion.” Lanza v. Simconis, 

914 A.2d 902, 905 (Pa.Super. 2006). “When faced with a sufficiency 

challenge under the [PFAA], 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 conclusion by a preponderance of the evidence.” Custer v. 

Cochran, 933 A.2d 1050, 1058 (Pa.Super. 2007) (en banc), citing 

Hood-O’Hara v. Wills, 873 A.2d 757, 760 (Pa.Super. 2005). “[W]e must 

defer to the credibility determinations of the [PFA] court.” Id. “The 

preponderance of evidence standard is defined as the greater weight of the 

evidence, i.e., to tip a scale slightly is the criteri[on] or requirement for 

preponderance of the evidence.” Ferri v. Ferri, 854 A.2d 600, 603 

(Pa.Super. 2004) (internal citations and quotations omitted).

“The purpose of the [PFAA] Act 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.” Mescanti v. Mescanti, 

956 A.2d 1017, 1022 (Pa.Super. 2008). The PFAA defines “abuse,” in 

relevant part, as follows:

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:

. . . .
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(2) Placing another in reasonable fear of 

imminent serious bodily injury.

23 Pa.C.S.A. § 6102(a).3 “[T]he court’s objective is to determine whether 

the victim is in reasonable fear of imminent serious bodily injury. . . . [The] 

intent [of the alleged abuser] is of no moment.” Raker v. Raker, 847 A.2d 

720, 725 (Pa.Super. 2004).

Viewed in the light most favorable to Mother on behalf of the parties’ 

minor children, the verdict winner, we agree with the trial court’s 

determination that the evidence warrants a PFA order against Father. In his 

first argument, Father contends the slap does not constitute a reasonable 

fear of imminent serious bodily injury. (Father’s brief at 23.) Father cites 

Ferri v. Ferri, supra, for the proposition that a slap would not constitute 

reasonable fear of imminent serious bodily injury.

The facts instantly are unlike those presented in Ferri. In Ferri, 

Mother was trying to get N.F., her six-year-old child, into her house when 

she inflicted a slap on N.F.’s face. N.F. did not cry or suffer a bruise from 

the slap. Father filed a protection from abuse petition against Mother that 

the trial court granted. 

In reversing, this court explained there was no evidence presented 

that N.F. was in reasonable fear of imminent bodily injury. This court opined 

 

3 The other definitions of “abuse” in Section 6102(a) do not apply to this 

matter.
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“in those cases where we have affirmed the entry of a PFA order, despite the 

fact that the victim did not experience an actual injury, the victim was in 

each case able to demonstrate a reasonable fear of imminent bodily injury, 

pursuant to 23 Pa.C.S.A. § 6102(a)(ii).” Id. at 604. We further determined

that the record in Ferri was devoid of any evidence that N.F. was in 

reasonable fear of imminent bodily injury, nor did Father argue that N.F. was 

in fear. Id.4

Instantly, according to eight-year-old B.D.’s testimony regarding the 

September 4, 2014 incident, Father yelled bad words, kicked the trash can, 

hit her across the face with an open hand, and pushed her. She fell to the 

ground and got a rug burn. Her Father yelled “go to bed” and “he shook the 

bed and said bad words.” B.D. testified she thought she was going to fall 

out of the top bunk bed when her Father shook the bed. During the 

incident, she was crying and felt sad. (Notes of testimony, in camera

interview, 10/21/14 at 10, 16.) Along with this testimony, B.D. told of other 

incidents that involved Father pushing her and Mother, and Father yelling. 

The trial court found B.D.’s testimony credible. See Smith v. Shaffer, 515 

 

4 We note without further comment the Ferri court regarded the slap as a 

form of corporal punishment or parental discipline. The court explained: 

“We do not believe the General Assembly intended the [PFAA] to tie the 

hands of parents who may have to discipline their children appropriately. 

Indeed, the ‘[PFAA] does not outlaw corporal punishment by a parent.’ This 

is so, presumably, because most parents understand that if corporal 

punishment is properly imposed, it will not produce bodily injury.” Id.

(internal citations omitted).
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A.2d 527, 528 (Pa. 1986) (determination of credibility is solely for the trier 

of fact). Unlike Ferri, there was evidence presented to show that the 

eight-year-old child, B.D., was in reasonable fear of imminent serious bodily 

injury.

Father also cites Mescanti v Mescanti, supra, another protection 

from abuse case, in support of his position. In that case, husband and wife 

were separated but continued to reside in the same home. Id., 956 A.2d at 

1020. Wife testified regarding a pattern of harassment by husband that 

lasted for months. Id., at 1021. On the day of the incident in question, the 

parties argued. Husband stated to wife, “[t]his is going to get ugly” and 

“[t]his is just the tip of the iceberg.” Id. at 1020. Later in the evening, 

husband said to wife, “you better not go to sleep. You better not even close 

your eyes.” Id. at 1021. Wife testified husband owned several guns that 

were located in the home, and that she heard the cocking of guns in the 

basement on previous occasions. Id. The trial court found that wife 

provided sufficient evidence to support a finding that Husband had engaged 

in a course of conduct that reasonably placed Wife in fear of bodily injury 

and thus constituted “abuse” under 23 Pa.C.S.A. § 6102(a)(5).5 Id. at 

1023.

 

5 Section 6102(a)(5) provides, in relevant part: “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.”
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In affirming, this court explained, “Considered as a whole, Wife’s 

testimony of Husband’s indirect threats on the night [in question], when 

coupled with her testimony that on prior occasions he would cock his guns 

within her earshot, established “abuse” under Section 6102(a)(5) by a 

preponderance of the evidence.” Id. at 1024.

In his brief, Father states, unlike Mescanti, there was no accusation 

by B.D. that he had weapons or had ever threatened her life; thus, there 

was no basis to conclude that she had a reasonable fear of imminent serious 

bodily injury. (Father’s brief at 24.) We point out that the findings of 

“abuse” in the case sub judice and the Mescanti case were based on two 

different sections of the PFAA. Mescanti involved a pattern of conduct that 

ultimately led to an incident where husband implied he might shoot his wife. 

Wife reasonably feared bodily injury at the hands of husband. Instantly, 

during the September 4th incident, Father yelled bad words, kicked the trash 

can, hit B.D. across the face with an open hand, pushed her, shook her bed 

to the extent she believed she was going to fall out of it. Father’s actions 

caused an eight-year-old child to be in fear of imminent serious bodily 

injury. 

In his next argument, Father complains that B.D.’s testimony relating 

Father’s actions on September 4, 2014, does not meet the standard 

necessary to support a finding that she could have a reasonable fear of 

imminent serious bodily injury as set out in the Crimes Code. (Father’s brief 
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at 27.) Father relies on Section 6102(b) of the PFAA, which states, “[t]erms 

not defined in [the PFAA] shall have the meaning given to them in 

18 Pa.C.S.A. (relating to crimes and offenses).” The definition of “serious 

bodily injury” is a bodily injury which creates a substantial risk of death or 

which causes serious, permanent disfigurement, or protracted loss or 

impairment of the function of any bodily member or organ. See 18 

Pa.C.S.A. § 2301.

Instantly, in Father’s view, the incident was too minor to result in a 

reasonable fear of serious injury. Father testified that he was upset that his 

children had run outside naked, across a parking lot, so he directed B.D., “in 

a very stern way,” to put on clothes. (Notes of testimony, 10/21/14 at 70.) 

He further testified that he “clapped his hands right in front of [B.D.’s] face 

and [he] grabbed her shoulder and shoved her,” but grabbed her arm and 

held her up so her knee did not hit the floor. (Id. at 71.) Father testified 

that with the actions taken, he intended to “give [B.D.] an experience . . . 

the sensation of a car hitting her”; he was not trying to scare her. (Id.) 

Father’s explanation of his intent will not afford him any relief. In the 

context of a PFA case, the trial court’s objective is to determine whether the 

victim is in reasonable fear of imminent serious bodily injury, which is 

exactly the conclusion arrived at by the trial court here. B.D., was an eightyear-old child who testified at length regarding the fear she experienced 

during the September 4th incident. That testimony, in addition to the fear 
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she experienced during prior incidents as well as the ongoing fear she feels 

when her Father acts “mean,” is a proper basis for the entry by the trial 

court of this precise PFA order which also directs Father to attend an anger 

management program and therapy sessions with B.D. See Raker, 847 A.2d 

at 726 (explaining that in light of the protective purposes of the PFA, it is not 

an abuse of discretion for the court to inquire into the history of the parties 

in order to determine the reasonableness of the petitioner’s fear). Moreover, 

“[t]he victim of abuse need not suffer actual injury, but rather be in 

reasonable fear of imminent serious bodily injury.” Burke ex rel. Burke v. 

Bauman, 814 A.2d 206, 208-209 (Pa.Super. 2002).

In his final issue, Father argues the trial court abused its discretion 

when it denied his motion for reconsideration which provided the court with 

a clear delineation of the applicable statutes and case law which justify a 

reversal of the trial court’s October 21, 2014 PFA order. Father then 

references the arguments he made in his Issues I through IV. We have 

already decided there was a legally sufficient and proper basis for the entry 

of a PFA order in this case. Accordingly, we do not need to say anything 

further.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/4/2015