The Superior Court of Pennsylvania recently made a decision that will change how Protection from Abuse (PFA) cases will proceed. Previously, as a matter of practice, a PFA petition once filed would be reviewed by the Judge and then a decision could be made as to whether a temporary PFA order was warranted pending a final hearing just based on review of the petition. In Ferko-Fox v. Fox, 2013 PA Super 88 (2013), the Superior Court ruled that the practice of granting temporary orders in this fashion does not meet the requirements of due process as required by the PFA statute. Specifically, 23 Pa. C.S. 6107 (b) requires the court to conduct an ex parte hearing prior to determining if a temporary order is warranted.
Based on the Fox decision which demands strict compliance with the PFA statute, a person seeking a PFA will be required to go before a Judge after filing the petition in order for a brief hearing to be held. This is required in order to safeguard the defendant’s due process rights. According to the Superior Court, those due process rights are not met unless the court takes the time to question the moving party as to the truth of their petition. Arguably, having the moving party appear before a Judge and be sworn in reduces the likelihood that they will make exaggerated or false allegations of abuse. Additionally, the hearing gives the Judge the opportunity to view the demeanor of the moving party and determine his or her credibility as well as see first-hand any physical evidence of abuse. The only exception the court will recognize to this requirement of an ex parte hearing is if there are exigent circumstances and the moving party is unable to appear.