PRINTER'S NO. 453
No. 418 Session of 1987
INTRODUCED BY LASHINGER, VROON, CHADWICK, D. W. SNYDER, COHEN,
NOYE, MICOZZIE, FOX, HAGARTY, E. Z. TAYLOR, STABACK, TRELLO,
RAYMOND, SWEET, FREEMAN, GODSHALL, HOWLETT, MAIALE, DeLUCA,
FISCHER, VEON, DISTLER, RITTER, ARTY AND GEIST, FEBRUARY 24,
1987
REFERRED TO COMMITTEE ON JUDICIARY, FEBRUARY 24, 1987
AN ACT
1 Amending the act of October 7, 1976 (P.L.1090, No.218), entitled
2 "An act relating to abuse of adults and children by a person
3 who resides with them; and providing for remedies and
4 procedures," adding and amending definitions; further
5 providing for practice and procedure, relief and remedies;
6 providing additional professional assistance for parties;
7 providing for confidentiality; and further providing for
8 contempt orders.
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 Section 1. Section 2 of the act of October 7, 1976
12 (P.L.1090, No.218), known as the Protection From Abuse Act,
13 amended June 23, 1978 (P.L.513, No.81), is amended to read:
14 Section 2. Definitions.--As used in this act:
15 "Abuse" means the occurrence of one or more of the following
16 acts between family or household members [who reside together;
17 or who formerly resided together and both parties continue to
18 have legal access to the residence], sexual or intimate partners
19 or persons who share biological parenthood:
1 (i) Attempting to cause or intentionally, knowingly or
2 recklessly causing bodily injury [or], serious bodily injury,
3 rape, spousal sexual assault or involuntary deviate sexual
4 intercourse with or without a deadly weapon.
5 (ii) Placing by physical menace another in fear of imminent
6 serious bodily injury.
7 (iii) The infliction of false imprisonment pursuant to 18
8 Pa.C.S. § 2903 (relating to false imprisonment).
9 (iv) [Sexually] Physically or sexually abusing minor
10 children as defined in this definition or pursuant to the act of
11 November 26, 1975 (P.L.438, No.124), known as the "Child
12 Protective Services Law."
13 "Adult" means any person 18 years of age or older.
14 "Bail commissioners" means bail commissioners of the
15 Municipal Court of Philadelphia.
16 "Confidential communications" means information, whether
17 written or spoken, transmitted between a victim and a domestic
18 violence counselor or advocate in the course of the relationship
19 and in confidence by a means which, insofar as the victim is
20 aware, discloses the information to no third person other than
21 to those who are present to further the interest of the victim
22 in the consultation or assistance, to those who are
23 coparticipants in the counseling service or to those to whom
24 disclosure is reasonably necessary for the transmission of the
25 information or an accomplishment of the purpose for which the
26 domestic violence counselor or advocate is consulted. The term
27 includes information received or given by the domestic violence
28 counselor or advocate in the course of the relationship, as well
29 as advice, reports or working papers given or made in the course
30 of the relationship.
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1 "Court" shall mean the court of common pleas.
2 "Domestic violence counselor/advocate" means an individual
3 who is engaged in a domestic violence program, who provides
4 services to victims of domestic violence and who is under the
5 control of a direct services supervisor of a domestic violence
6 program, the primary purpose of which is the rendering of
7 counseling or assistance to victims of domestic violence.
8 "Domestic violence program" means a nonprofit organization or
9 program whose primary purpose is to provide services to domestic
10 violence victims which include, but are not limited to, crisis
11 hotline; safe homes or shelters; community education; counseling
12 systems intervention and interface; transportation, information
13 and referral; and victim assistance.
14 "Family or household members" means spouses or persons who
15 have been spouses, persons living as spouses or who lived as
16 spouses, parents and children, [or] other persons related by
17 consanguinity or affinity, current or former sexual or intimate
18 partners or persons who share biological parenthood.
19 "Victim" means a person who is physically, psychologically or
20 sexually abused by a family or household member.
21 Terms not otherwise defined by this act shall have the
22 meaning given to them by the Crimes Code.
23 Section 2. The act is amended by adding sections to read:
24 Section 3.1. Venue.--An action under this act may be brought
25 in the judicial district where the plaintiff or defendant
26 resides or formerly resided, where the plaintiff is employed or
27 where an incident of abuse took place. Venue is not barred where
28 the victim has removed residence or employment from the judicial
29 district in which the abuse occurred in order to obtain a
30 residence or employment which the victim believes will render
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1 the victim less susceptible to further abuse.
2 Section 3.2. Transfer of Order.--(a) A court shall
3 recognize and enforce a valid order under this act which has
4 been transferred from the issuing court. The court to which a
5 valid order has been transferred shall have authority to enforce
6 or modify the transferred order. Once an order has been
7 transferred, the issuing court shall have continuing authority
8 to enforce the order but relinquishes authority to modify the
9 order.
10 (b) The plaintiff shall proceed in the following manner:
11 (1) Obtain a certified copy of the order of the issuing
12 court endorsed by the prothonotary of that court.
13 (2) Present to the prothonotary of the court to which the
14 plaintiff is seeking transfer:
15 (i) A copy of the pleadings filed with the issuing court.
16 (ii) A certified order.
17 (iii) A motion for transfer.
18 (iv) A proposed order confirming the transfer.
19 (3) Serve the defendant or the defendant's attorney of
20 record with notice of the motion for transfer.
21 (c) A defendant wishing to raise objections to the transfer
22 shall file a petition with the receiving court.
23 (d) (1) Unless the motion, certified order or proposed order
24 is facially defective, the receiving court shall assume
25 jurisdiction over the case.
26 (2) Upon accepting jurisdiction, the court shall give notice
27 to the issuing court, the plaintiff, the defendant and the
28 appropriate local law enforcement agency in the judicial
29 district of the receiving court by serving upon them a copy of
30 its order confirming transfer and assuming jurisdiction. Service
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1 shall be by first class mail.
2 Section 3. Section 4 of the act, amended June 23, 1978
3 (P.L.513, No.81), is amended to read:
4 Section 4. Commencement of Proceeding.--(a) [A person] An
5 adult or an emancipated minor may seek relief under this act for
6 himself or herself, or any parent [or], adult household member
7 or guardian ad litem may seek relief under this act on behalf of
8 minor children, or a guardian of the person of an adult who has
9 been declared incompetent under 20 Pa.C.S. Ch. 51, Subch. B
10 (relating to appointment of guardian) may seek relief on behalf
11 of the incompetent adult, by filing a petition with the court
12 alleging abuse by the defendant.
13 (b) If the plaintiff files an affidavit stating that he or
14 she does not have funds available to pay the costs of filing and
15 service, the petition shall be filed and service shall be made
16 without payment of costs and leave of court to proceed in forma
17 pauperis shall not be required. When the petition is filed
18 without payment of costs, the court shall determine at the
19 hearing on the petition [if the plaintiff is indigent. If the
20 court finds that the plaintiff is not indigent the court may
21 order the plaintiff to pay the court costs.] whether the
22 plaintiff is able to pay the costs of filing and service. If the
23 plaintiff is unable to pay the costs of filing and service, the
24 court may waive the payment of costs or, if the plaintiff
25 prevails in the action, assign them to the defendant. This
26 subsection applies to courts of common pleas, the Municipal
27 Court of Philadelphia, bail commissioners and district justices.
28 (c) The court shall adopt a means of prompt and effective
29 service in those instances where the plaintiff avers that
30 service cannot be safely effected by an adult individual other
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1 than a law enforcement officer or where the court so orders.
2 (d) If the plaintiff files an affidavit stating that the
3 plaintiff does not have funds available to pay the costs of
4 filing and service or if the court so orders, the sheriff or
5 other designated agency or individual shall serve the petition
6 and order without prepayment of costs.
7 (e) The petition and orders shall be served upon the
8 defendant, and orders shall be served upon the police
9 departments with appropriate jurisdiction to enforce the orders.
10 Orders shall be promptly served on the police. Failure to serve
11 shall not stay the effect of a valid order.
12 (f) The courts, district justices, the Municipal Court of
13 Philadelphia and bail commissioners shall:
14 (1) Provide simplified forms and clerical assistance in
15 English and Spanish to help with the writing and filing of the
16 petition for a protection order for an individual not
17 represented by counsel.
18 (2) Advise a plaintiff not represented by counsel of the
19 right to file an affidavit stating that the plaintiff does not
20 have funds available to pay the costs of filing and service and
21 assist with the writing and filing of the affidavit.
22 Section 4. Section 5 of the act is amended to read:
23 Section 5. Hearings.--(a) Within ten days of the filing of
24 a petition under this act a hearing shall be held before the
25 court, at which (hearing) the plaintiff must prove the
26 allegation of abuse by a preponderance of the evidence. The
27 court shall advise the defendant of his right to be represented
28 by counsel.
29 (b) [The court may enter such temporary orders as it deems
30 necessary to protect the plaintiff or minor children from abuse,
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1 upon good cause shown in an ex-parte proceeding. Immediate and
2 present danger of abuse to the plaintiff or minor children shall
3 constitute good cause for purposes of this section.] If a
4 plaintiff petitions for temporary order for protection from
5 abuse and alleges immediate and present danger of abuse to the
6 plaintiff or minor children, the court shall conduct an ex-parte
7 proceeding. The court may enter such a temporary order as it
8 deems necessary to protect the plaintiff or minor children when
9 if finds they are in immediate and present danger of abuse.
10 (c) If a hearing under subsection (a) is continued, the
11 court may make or extend such temporary orders under subsection
12 (b) as it deems necessary.
13 (d) If the plaintiff prevails, the court shall assign costs
14 to the defendant unless the parties agree otherwise. If the
15 defendant is indigent, costs shall be waived.
16 Section 5. Sections 6, 7 and 8 of the act, amended June 23,
17 1978 (P.L.513, No.81), are amended to read:
18 Section 6. Relief.--(a) The court shall be empowered to
19 grant any protection order or approve any consent agreement to
20 bring about a cessation of abuse of the plaintiff or minor
21 children, which may include:
22 (1) Directing the defendant to refrain from abusing the
23 plaintiff or minor children.
24 (2) Granting possession to the plaintiff of the residence or
25 household to the exclusion of the defendant by evicting the
26 defendant and/or restoring possession to the plaintiff when the
27 residence or household is jointly owned or leased by the parties
28 [or], is owned or leased by the entireties [or], is owned or
29 leased solely by the plaintiff, is owned or leased by the
30 plaintiff and a third party or is owned or leased by a third
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1 party.
2 (3) When the defendant has a duty to support the plaintiff
3 or minor children living in the residence or household and the
4 defendant is the sole owner or lessee or jointly owns or leases
5 the residence or household with a third party, granting
6 possession to the plaintiff of the residence or household to the
7 exclusion of the defendant by evicting the defendant and/or
8 restoring possession to the plaintiff, or by consent agreement
9 allowing the defendant to provide suitable, alternate housing.
10 (4) Awarding temporary custody of and/or establishing
11 temporary visitation rights with regard to minor children. A
12 defendant shall not be granted these rights where it is alleged
13 in the petition, and there is substantial evidence at a
14 proceeding or hearing under this act, that the defendant abused
15 the minor children of the parties or where the defendant has
16 been convicted of violating 18 Pa.C.S. § 2904 (relating to
17 interference with custody of children) within two calendar years
18 prior to the filing of the petition for protection order. If a
19 plaintiff petitions for a temporary order under section 5(b) and
20 the defendant has partial, shared or full custody of the minor
21 children of the parties by order of court or written agreement
22 of the parties, the custody shall not be disturbed or changed
23 unless the court finds that the defendant is likely to inflict
24 abuse upon the children or to remove the children from the
25 jurisdiction of the court prior to the hearing under section
26 5(a). Nothing in this paragraph shall bar either party from
27 filing a petition for custody under 23 Pa.C.S. Ch. 53 (relating
28 to custody) or under the Pennsylvania Rules of Civil Procedure.
29 The court shall consider, and may impose on a custody award,
30 conditions necessary to assure the safety of the plaintiff and
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1 minor children from abuse.
2 (5) After a hearing in accordance with section 5(a),
3 directing the defendant to pay financial support to such persons
4 as defendant has a duty to support. Such a support order is
5 temporary and any beneficiary of the order must petition for
6 support under the provisions of [the Civil Procedural Support
7 Act] 23 Pa.C.S. Ch. 43 (relating to support matters generally)
8 within two weeks of the date of the issuance of the protection
9 order. If such a petition is not filed that portion of the
10 protection order requiring the defendant to pay support is void.
11 When there is a subsequent ruling on a petition for support
12 under [the Civil Procedural Support Act] 23 Pa.C.S. Ch. 43 the
13 portion of the protection order requiring the defendant to pay
14 support becomes void.
15 (6) Prohibiting the defendant from having any contact with
16 the plaintiff, including, but not limited to, restraining the
17 defendant from entering the place of employment or business or
18 school of the plaintiff and from harassing the plaintiff or
19 plaintiff's relatives or minor children.
20 (7) Ordering the defendant to temporarily relinquish to the
21 sheriff the defendant's weapons which have been used or been
22 threatened to be used in an incident of abuse against the
23 plaintiff or the minor children. The sheriff shall maintain
24 possession of the weapons until the court issues an order
25 specifying the weapons to be relinquished and the persons to
26 whom the weapons shall be relinquished.
27 (8) Directing the defendant to pay the plaintiff for
28 reasonable losses suffered as a result of the abuse, including
29 medical, dental, relocation and moving expenses; counseling;
30 loss of earnings or support; attorney fees; and other out-of-
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1 pocket losses for injuries sustained.
2 (b) Any protection order or approved consent agreement shall
3 be for a fixed period of time not to exceed one year. The court
4 may amend its order or agreement at any time upon subsequent
5 petition filed by either party.
6 (c) No order or agreement under this act shall in any manner
7 affect title to any real property.
8 Section 7. Notification.--(a) A copy of any order under
9 this act shall be issued to the plaintiff, the defendant and the
10 police department with appropriate jurisdiction to enforce the
11 order or agreement, in accordance with the provisions of this
12 act or as ordered by the court, district justice, the Municipal
13 Court of Philadelphia or bail commissioners.
14 (b) Upon receipt of an order, the police department shall
15 immediately place the order in a county registry of protection
16 orders. The police department shall assure that the registry is
17 current at all times and that orders are removed upon expiration
18 thereof.
19 Section 8. Emergency Relief.--(a) When, in counties with
20 less than four judges, the court is unavailable [from the close
21 of business at the end of the week to the resumption of business
22 at the beginning of the week] during the business day by reason
23 of duties outside the county, illness or vacation, and when, in
24 counties with at least four judges, the court deems itself
25 unavailable from the close of business at the end of each day to
26 the resumption of business the next morning or from the end of
27 the business week to the beginning of the business week, a
28 petition may be filed before a district justice, bail
29 commissioner or Philadelphia Municipal Court Judge who may grant
30 relief in accordance with section 6(a)(1), (2) or (3) if the
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1 district justice [or], bail commissioner or Philadelphia
2 Municipal Court Judge deems it necessary to protect the
3 plaintiff or minor children from abuse, upon good cause shown in
4 an ex-parte proceeding. Immediate and present danger of abuse to
5 the plaintiff or minor children shall constitute good cause for
6 purposes of this section.
7 (b) Any order issued under subsection (a) shall expire as of
8 the resumption of business of the court at the beginning of the
9 [week or within 72 hours, whichever occurs sooner; at which
10 time, the plaintiff may seek a temporary order from the court.]
11 next business day, at which time the court shall schedule
12 hearings on protection orders entered by district justices, bail
13 commissioners or Philadelphia Municipal Court Judges under
14 subsection (a), and automatically continue in effect those
15 orders until the hearing occurs. In counties with less than four
16 judges, if the court continues to be unavailable at the
17 beginning of the next business day, the district justice issuing
18 the initial emergency order or any other district justice in
19 that county shall issue a second emergency order upon request of
20 the plaintiff.
21 (c) Any emergency order issued under this section and any
22 documentation in support thereof shall be immediately certified
23 to the court. Such certification to the court shall have the
24 effect of commencing proceedings under section 4 and invoking
25 the other provisions of this act. If it is not already alleged
26 in a petition for an emergency order, the plaintiff shall file a
27 verified statement setting forth the abuse of defendant at least
28 five days prior to the hearing. Service of the verified
29 statement shall be made subject to section 4(a).
30 (d) Upon issuance of an emergency order, the district
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1 justice, bail commissioner or Philadelphia Municipal Court Judge
2 shall provide the plaintiff instructions regarding the
3 commencement of proceedings in the court of common pleas at the
4 beginning of the next business day and regarding the procedures
5 for initiating a contempt charge should the defendant violate
6 the emergency order. The district justice, a bail commissioner
7 or Philadelphia Municipal Court Judge shall also advise the
8 plaintiff of the existence of programs for victims of domestic
9 violence in the county or in nearby counties and inform the
10 plaintiff of the availability of legal assistance without cost
11 if the plaintiff is unable to pay for them.
12 Section 6. The act is amended by adding sections to read:
13 Section 8.1. Domestic Violence Counselor/Advocate.--A
14 domestic violence counselor/advocate may accompany a party to a
15 hearing under this act and, when a party is unrepresented by
16 counsel, provide assistance to a party in representing the facts
17 germane to the action.
18 Section 8.2. Disclosure of Addresses.--(a) During the
19 course of a proceeding under this act, the court, district
20 justice, Philadelphia Municipal Court Judge or bail commissioner
21 may consider whether the plaintiff or plaintiff's family is
22 endangered by disclosure of the permanent or temporary address
23 of the plaintiff or minor children.
24 (b) Neither in the pleadings nor during proceedings or
25 hearings under this act shall the court, district justice,
26 Philadelphia Municipal Court Judge or bail commissioner require
27 disclosure of the address of a domestic violence program.
28 Section 7. Section 10 of the act, amended June 23, 1978
29 (P.L.513, No.81), is amended to read:
30 Section 10. Contempt.--(a) Upon violation of a protection
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1 order issued under this act, or a court approved consent
2 agreement the court may hold the defendant in indirect criminal
3 contempt and punish him in accordance with the law.
4 (b) Notwithstanding any provision of the law to the contrary
5 any sentence for this contempt may include imprisonment up to
6 six months or a fine not to exceed $1,000 or both and [the] may
7 include other relief set forth in this act. The defendant shall
8 not have a right to a jury trial on such a charge; however, the
9 defendant shall be entitled to counsel.
10 (c) An arrest for violation of an order issued pursuant to
11 this act may be without warrant upon probable cause whether or
12 not the violation is committed in the presence of the police
13 officer. The police officer may verify, if necessary, the
14 existence of a protection order by telephone or radio
15 communication with the appropriate police department, county
16 registry or issuing authority.
17 (c.1) Subsequent to an arrest, the police officer shall
18 seize all weapons used or threatened to be used during the
19 violation of the protection order or during prior incidents of
20 abuse. As soon as it is reasonably possible, the arresting
21 officer shall deliver the confiscated weapons to the office of
22 the sheriff. The sheriff shall maintain possession of the
23 weapons until the court issues an order specifying the weapons
24 to be relinquished and the persons to whom the weapons shall be
25 relinquished.
26 (d) Subsequent to an arrest the defendant shall be taken by
27 the police officer without unnecessary delay before the court
28 [that issued the order] in the judicial district where the
29 contempt is alleged to have occurred. When that court is
30 unavailable the [defendant shall be arraigned before] police
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1 officer shall convey the defendant to a district justice
2 designated as appropriate by local rules of court, or, in cities
3 of the first class [the municipal court, in accordance with the
4 Rules of Criminal Procedure. This section shall not be construed
5 to in any way limit any of the other powers for emergency relief
6 provided in this act.], to a Philadelphia Municipal Court Judge
7 or designated bail commissioner.
8 (e) The defendant shall be afforded a preliminary
9 arraignment without unnecessary delay.
10 (f) This section shall not be construed to in any way limit
11 any of the other powers for emergency relief provided in this
12 act.
13 (g) A hearing on a charge or allegation of indirect criminal
14 contempt shall not preclude a hearing on other criminal charges
15 underlying the contempt, nor shall a hearing on other criminal
16 charges preclude a hearing on a charge of indirect criminal
17 contempt.
18 (h) Notice shall be given to the defendant, in orders issued
19 pursuant to section 6(a)(2) or (3), of the possible
20 ramifications of resumption of residence in the family domicile
21 contrary to court order. Resumption of co-residence on the part
22 of the plaintiff and defendant shall not nullify the provisions
23 of the court order directing the defendant to refrain from
24 abusing the plaintiff or minor children.
25 Section 8. The act is amended by adding sections to read:
26 Section 10.1. Reporting Abuse and Immunity Therefor.--(a) A
27 person having reasonable cause to believe that a person is being
28 abused may report the information to the local police
29 department.
30 (b) The report should contain the name and address of the
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1 abused person, information regarding the nature and extent of
2 the abuse and information which the reporter believes may be
3 helpful to prevent further abuse.
4 (c) A person who makes a report shall be immune from a civil
5 or criminal liability on account of the report unless the person
6 acted in bad faith or with malicious purpose.
7 Section 10.2. Confidentiality.--Unless a victim waives the
8 privilege in a signed writing prior to testimony or disclosure,
9 a domestic violence counselor/advocate shall not be competent
10 nor permitted to testify or to otherwise disclose confidential
11 communications made to or by the counselor/advocate by or to a
12 victim. The privilege shall terminate upon the death of the
13 victim. Neither the domestic violence counselor/advocate nor the
14 victim shall waive the privilege of confidential communications
15 by reporting facts of physical or sexual assault under the act
16 of November 26, 1975 (P.L.438, No.124), known as the "Child
17 Protective Services Law"; a Federal or State mandatory reporting
18 statute; or a local mandatory reporting ordinance.
19 Section 9. This act shall take effect in 60 days.
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