J-S69006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID RICHARDSON IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CATHERINE RICHARDSON

Appellant No. 3477 EDA 2014

Appeal from the Order Entered November 14, 2014

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2014-29238

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 16, 2015

Appellant, Catherine Richardson, appeals from the order entered in the 

Montgomery County Court of Common Pleas, granting final Protection from 

Abuse (“PFA”) in favor of Appellee, David Richardson. For the following 

reasons, we vacate the final PFA order, direct reinstatement of the 

temporary PFA order, and remand for further proceedings. 

In its opinion, the trial court set forth the relevant facts and procedural 

history of this case as follows:

On October 30, 2014, Appellee filed a [PFA petition] 

against Appellant on behalf of himself. In said petition 

Appellee avers that on October 28, 2014, Appellant 

repeatedly called his cell phone and office, and eventually 

got him on the phone to tell him...“she was coming to [his] 

home and someone was going to beat [him] up and get 

inside of [his] home. On the same date, the Honorable 

Patricia E. Coonahan, issued a temporary PFA Order, which 

directed that Appellant “shall not abuse, harass, stalk, or 
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threaten,” or have any contact with Appellee. In addition, 

a Notice of Hearing was issued scheduling a hearing on the 

PFA petition for November 6, 2014, before the 

undersigned. 

On October 31, 2014, Appellant was personally served with 

a copy of the PFA petition, the temporary PFA Order, and 

the Notice of Hearing that indicated a hearing would be 

held on November 6, 2014. 

On November 6, 2014, Appellee appeared for the hearing, 

but Appellant failed to appear. After verifying that 

Appellant had not requested any continuance, and had 

received proper service of the Notice of Hearing, this 

[c]ourt conducted a hearing in Appellant’s absence. 

At the conclusion of the hearing, this [c]ourt issued a final 

PFA Order (“Final PFA”) on behalf of Appellee which directs 

that Appellant, for a period of one (1) year, shall not 

contact Appellee, his wife, or his stepdaughter, and further 

directs that Appellant “shall not abuse, stalk, harass, 

threaten or attempt to use physical force that would 

reasonably be expected to cause bodily injury to Appellee. 

The Final PFA also directs Appellant to undergo alcohol 

rehabilitation. 

On December 2, 2014, Appellant filed an Emergency 

Motion for Reconsideration of the November 6, 2014 Final 

PFA Order. In said Motion, Appellant averred that she had 

every intention to appear on November 6, 2014, to defend 

against the PFA petition, but was unable to attend because 

she was involuntarily committed to the Montgomery 

County Services Building 50 (“Building 50”) pursuant to 

section 302 of the Mental Health Procedures Act of 1976.[1] 

Appellant sought to vacate the Final PFA Order, reinstate 

the temporary PFA Order, and reschedule the hearing so 

that she could present a defense to the PFA petition. In an 

abundance of caution to preserve her appeal rights, on 

December 5, 2014, Appellant also filed a Notice of Appeal 

from the November 6, 2014 Final PFA Order. 

____________________________________________

1 50 P.S. § 7302. 
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On December 17, 2014, this [c]ourt issued an Order, 

which purportedly granted Appellant’s Emergency Motion 

for Reconsideration, vacated the November 6, 2014 Final 

PFA, reinstated the October 30, 2014 temporary PFA, and 

scheduled a new hearing date for January 6, 2015. 

However, on January 9, 2015, the Superior Court of 

Pennsylvania, issued a Per Curiam Order, which informed 

this [c]ourt that because this [c]ourt did not grant 

Appellant’s Motion for Reconsideration until December 17, 

2014, which was two days after the thirty day window for 

reconsideration, this [c]ourt was without jurisdiction to 

enter the December 17, 2014 Order. Accordingly, the 

Final PFA Order was properly before the Superior Court on 

appeal. 

On January 21, 2015, Appellant filed a Response to the 

Superior Court’s January 9, 2015 Order and an Application 

for Remand. In said Response/Application, Appellant 

requests that the matter be remanded back to this [c]ourt 

so that a hearing can be held, as outlined in the December 

17, 2014 Order. 

(Trial Court Opinion, filed April 10, 2015, at 1-3) (internal footnotes 

omitted). 

Appellant raises the following issue on appeal:

WAS APPELLANT DENIED PROCEDURAL DUE PROCESS 

WHEN TRIAL WAS CONDUCTED IN HER ABSENCE WHILE 

SHE REMAINED INVOLUNTARILY CIVILLY COMMITTED 

PURSUANT TO SECTION 302 OF THE MENTAL HEALTH 

PROCEDURE[S] ACT OF 1976[,] 50 P.S. § 7302[?] 

(Appellant’s Brief at 4). 

Appellant argues she was denied due process when the Court of 

Common Pleas of Montgomery County proceeded with trial in her absence. 

Specifically, Appellant contends that on the date Appellee’s PFA petition was 
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heard, Appellant was rendered unavailable due to her involuntary civil 

commitment, pursuant to Section 302 of the Mental Health Procedure Act of 

1976. Because Appellant was literally rendered unavailable for trial, 

Appellant concludes we should remand for further proceedings. We agree. 

When an appellant files a motion for reconsideration of a final order, 

she must file the notice of appeal simultaneously to assure the availability of 

appellate review should the trial court deny the petition or fail to grant it 

“expressly” within the 30-day appeal period. See Sass v. AmTrust Bank, 

74 A.3d 1054, 1062 (Pa.Super. 2013), appeal denied, 624 Pa. 675, 85 A.3d 

484 (2014) (citing Cheathem v. Temple University Hosp., 743 A.2d 518, 

521 (Pa.Super. 1999)). In other words, the mere filing of a motion for 

reconsideration does not toll the 30-day appeal period:

The Rules of Appellate Procedure recognize a single 

method to toll the appeal period which counsel throughout 

this Commonwealth have consummated through decades 

of practice: “[T]he 30-day period may only be tolled if 

that court enters an order ‘expressly granting’ 

reconsideration within 30 days of the final order.” “There 

is no exception to this Rule, which identifies the only form 

of stay allowed. A customary order and rule to show cause 

fixing a briefing schedule and/or hearing date, or any other 

order except for one “expressly granting” reconsideration, 

is inadequate.” Consequently, a party seeking 

reconsideration must file the notice of appeal 

simultaneously to assure the availability of appellate 

review should the trial court deny the petition or fail to 

grant it “expressly” within that critical 30–day window. 

Sass, supra (internal citations omitted). See also Commonwealth v. 

Moir, 766 A.2d 1253, 1254 (Pa.Super. 2000) (holding court must expressly 
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grant reconsideration within 30-day appeal period; court’s order to show 

cause and setting hearing date does not expressly grant reconsideration; 

filing protective notice of appeal is necessary to preserve appellate rights). 

For a PFA hearing to comport with due process, the parties must, at a 

minimum, have the opportunity to present witnesses on their own behalf, 

testify on their own behalf, and cross-examine the opposing party and 

his/her witnesses. Leshko v. Leshko, 833 A.2d 790 (Pa.Super. 2003). 

Instantly, the trial court reasoned:

“The purpose of the PFA 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.” Buchhalter v. Buchhalter, 959 A.2d

1260, 1262 (Pa.Super. 2008). In PFA hearings, a 

defendant has been afforded due process “where Appellant 

was entitled to present witnesses in his own defense and 

to cross-examine witnesses including Appellee” despite 

being unrepresented by counsel. [Leshko supra at 791.] 

In the present matter, although the [c]ourt finds the 

issuance of the Final PFA was proper and in accordance 

with 23 Pa.C.S. § 6107(a), this [c]ourt was willing to 

vacate the Final PFA, and reinstate the temporary PFA to 

afford Appellant the opportunity to defend against the PFA 

petition while still providing Appellee with protection in the 

interim. Because Appellee’s interests are still protected by 

the temporary PFA, this [c]ourt does not find that Appellee 

would be prejudiced if Appellant were granted to the 

opportunity to present a defense to the PFA petition. 

Accordingly, [the court] respectfully submits that this 

matter should be remanded so this [c]ourt can conduct a 

new hearing.... 

(Trial Court Opinion at 3-4). We accept the court’s recommendation; 

Appellant can have her day in court while Appellee remains protected under 
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the temporary PFA order Thus, we vacate the final PFA order, direct 

reinstatement of the temporary PFA order, and remand for further 

proceedings. 

Order vacated, case remanded. Jurisdiction is relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2015