PRIOR PRINTER'S NOS. 453, 2343 PRINTER'S NO. 2671
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, GEIST, NAHILL, MCVERRY,
STEVENS, KASUNIC, CIVERA, G. SNYDER, HARPER AND MORRIS,
FEBRUARY 24, 1987
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
DECEMBER 15, 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; AND REQUIRING THAT THE TRAINING OF LOCAL LAW <--
9 ENFORCEMENT OFFICERS INCLUDE INSTRUCTION CONCERNING
10 PROTECTION FROM ABUSE.
11 The General Assembly of the Commonwealth of Pennsylvania
12 hereby enacts as follows:
13 Section 1. Section 2 of the act of October 7, 1976
14 (P.L.1090, No.218), known as the Protection From Abuse Act,
15 amended June 23, 1978 (P.L.513, No.81), is amended to read:
16 Section 2. Definitions.--As used in this act:
17 "Abuse" means the occurrence of one or more of the following
18 acts between family or household members [who reside together;
19 or who formerly resided together and both parties continue to
1 have legal access to the residence], sexual or intimate partners
2 or persons who share biological parenthood:
3 (i) Attempting to cause or intentionally, knowingly or
4 recklessly causing bodily injury [or], serious bodily injury,
5 rape, spousal sexual assault or involuntary deviate sexual
6 intercourse with or without a deadly weapon.
7 (ii) Placing by physical menace another in fear of imminent
8 serious bodily injury.
9 (iii) The infliction of false imprisonment pursuant to 18
10 Pa.C.S. § 2903 (relating to false imprisonment).
11 (iv) [Sexually] Physically or sexually abusing minor
12 children as defined in this definition or pursuant to the act of
13 November 26, 1975 (P.L.438, No.124), known as the "Child
14 Protective Services Law."
15 "Adult" means any person 18 years of age or older.
16 "Bail commissioners" means bail commissioners of the
17 Municipal Court of Philadelphia.
18 "Confidential communications" means information, whether
19 written or spoken, transmitted between a victim and a domestic
20 violence counselor or advocate in the course of the relationship
21 and in confidence by a means which, insofar as the victim is
22 aware, discloses the information to no third person other than
23 to those who are present to further the interest of the victim
24 in the consultation or assistance, to those who are
25 coparticipants in the counseling service or to those to whom
26 disclosure is reasonably necessary for the transmission of the
27 information or an accomplishment of the purpose for which the
28 domestic violence counselor or advocate is consulted. The term
29 includes information received or given by the domestic violence
30 counselor or advocate in the course of the relationship, as well
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1 as advice, reports or working papers given or made in the course
2 of the relationship.
3 "Court" shall mean the court of common pleas.
4 "Domestic violence counselor/advocate" means an individual
5 who is engaged in a domestic violence program, who provides
6 services to victims of domestic violence, who has undergone 40
7 hours of training and who is under the control of a direct
8 services supervisor of a domestic violence program, the primary
9 purpose of which is the rendering of counseling or assistance to
10 victims of domestic violence.
11 "Domestic violence program" means a nonprofit organization or
12 program whose primary purpose is to provide services to domestic
13 violence victims which include, but are not limited to, crisis
14 hotline; safe homes or shelters; community education; counseling
15 systems intervention and interface; transportation, information
16 and referral; and victim assistance.
17 "Family or household members" means spouses or persons who
18 have been spouses, persons living as spouses or who lived as
19 spouses, parents and children, [or] other persons related by
20 consanguinity or affinity, current or former sexual or intimate
21 partners or persons who share biological parenthood.
22 "Victim" means a person who is physically or sexually abused
23 by a family or household member.
24 Terms not otherwise defined by this act shall have the
25 meaning given to them by the Crimes Code.
26 Section 2. The act is amended by adding sections to read:
27 Section 3.1. Venue.--An action under this act may be brought <--
28 in the judicial district where the defendant resides or where an
29 incident of abuse took place.
30 Section 3.2 3.1. Registration of Order.--(a) The <--
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1 prothonotary of each court of common pleas shall maintain a
2 registry in which it shall enter certified copies of orders
3 entered by courts from other jurisdictions in this Commonwealth
4 pursuant to the provision of this act.
5 (b) A plaintiff who obtains a valid order under this act may
6 register that order in any county within this Commonwealth where
7 the plaintiff believes enforcement may be necessary. A court
8 shall recognize and enforce a valid order under this act which
9 has been issued by another court but properly registered with a
10 county within the judicial district of the court where
11 enforcement is sought.
12 (c) A valid order under this act may be registered by the
13 plaintiff in a county other than the issuing county by obtaining
14 a certified copy of the order of the issuing court endorsed by
15 the prothonotary of that court and presenting that certified
16 order to the prothonotary where the order is to be registered.
17 (d) Upon receipt of a certified order for registration, the
18 prothonotary shall provide the plaintiff with a copy bearing the
19 proof of registration to be filed with the appropriate law
20 enforcement agency.
21 SECTION 3.2. RESPONSIBILITIES OF LOCAL LAW ENFORCEMENT <--
22 AGENCIES.--THE POLICE DEPARTMENT OF EACH CITY, BOROUGH,
23 INCORPORATED TOWN AND TOWNSHIP SHALL INSURE THAT ALL ITS
24 OFFICERS AND EMPLOYEES ARE FAMILIAR WITH THE PROVISIONS OF THIS
25 ACT. INSTRUCTION CONCERNING PROTECTION FROM ABUSE SHALL BE MADE
26 A PART OF THE TRAINING CURRICULUM FOR ALL TRAINEE OFFICERS.
27 Section 3. Section 4 of the act, amended June 23, 1978
28 (P.L.513, No.81), is amended to read:
29 Section 4. Commencement of Proceeding.--(a) [A person] An
30 adult or an emancipated minor may seek relief under this act for
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1 himself or herself, or any parent [or], adult household member
2 or guardian ad litem may seek relief under this act on behalf of
3 minor children, or a guardian of the person of an adult who has
4 been declared incompetent under 20 Pa.C.S. Ch. 51, Subch. B
5 (relating to appointment of guardian) may seek relief on behalf
6 of the incompetent adult, by filing a petition with the court
7 alleging abuse by the defendant.
8 (b) If the plaintiff files an affidavit stating that he or
9 she does not have funds available to pay the costs of filing and
10 service, the petition shall be filed and service shall be made
11 without payment of costs and leave of court to proceed in forma
12 pauperis shall not be required. When the petition is filed
13 without payment of costs, the court shall determine at the
14 hearing on the petition [if the plaintiff is indigent. If the
15 court finds that the plaintiff is not indigent the court may
16 order the plaintiff to pay the court costs.] whether the
17 plaintiff is able to pay the costs of filing and service. If the
18 plaintiff is unable to pay the costs of filing and service, the
19 court may waive the payment of costs or, if the plaintiff
20 prevails in the action, assign them to the defendant. This
21 subsection applies to courts of common pleas, the Municipal
22 Court of Philadelphia, bail commissioners and district justices.
23 (c) The court shall adopt a means of prompt and effective
24 service in those instances where the plaintiff avers that
25 service cannot be safely effected by an adult individual other
26 than a law enforcement officer or where the court so orders.
27 (d) If the plaintiff files an affidavit stating that the
28 plaintiff does not have funds available to pay the costs of
29 filing and service or if the court so orders, the sheriff or
30 other designated agency or individual shall serve the petition
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1 and order without prepayment of costs.
2 (e) The petition and orders shall be served upon the
3 defendant, and orders shall be served upon the police
4 departments with appropriate jurisdiction to enforce the orders.
5 Orders shall be promptly served on the police. Failure to serve
6 shall not stay the effect of a valid order.
7 (f) The courts, district justices, the Municipal Court of
8 Philadelphia and bail commissioners shall:
9 (1) Provide simplified forms and clerical assistance in
10 English and Spanish to help with the writing and filing of the
11 petition for a protection order for an individual not
12 represented by counsel.
13 (2) Advise a plaintiff not represented by counsel of the
14 right to file an affidavit stating that the plaintiff does not
15 have funds available to pay the costs of filing and service and
16 assist with the writing and filing of the affidavit.
17 Section 4. Section 5 of the act is amended to read:
18 Section 5. Hearings.--(a) Within ten days of the filing of
19 a petition under this act a hearing shall be held before the
20 court, at which (hearing) the plaintiff must prove the
21 allegation of abuse by a preponderance of the evidence. The
22 court shall advise the defendant of his right to be represented
23 by counsel.
24 (b) [The court may enter such temporary orders as it deems
25 necessary to protect the plaintiff or minor children from abuse,
26 upon good cause shown in an ex-parte proceeding. Immediate and
27 present danger of abuse to the plaintiff or minor children shall
28 constitute good cause for purposes of this section.] If a
29 plaintiff petitions for temporary order for protection from
30 abuse and alleges immediate and present danger of abuse to the
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1 plaintiff or minor children, the court shall conduct an ex-parte
2 proceeding. The court may enter such a temporary order as it
3 deems necessary to protect the plaintiff or minor children when
4 if finds they are in immediate and present danger of abuse.
5 (c) If a hearing under subsection (a) is continued, the
6 court may make or extend such temporary orders under subsection
7 (b) as it deems necessary.
8 (d) If the plaintiff prevails, the court shall assign costs
9 to the defendant unless the parties agree otherwise. If the
10 defendant is indigent, costs shall be waived.
11 Section 5. Sections 6, 7 and 8 of the act, amended June 23,
12 1978 (P.L.513, No.81), are amended to read:
13 Section 6. Relief.--(a) The court shall be empowered to
14 grant any protection order or approve any consent agreement to
15 bring about a cessation of abuse of the plaintiff or minor
16 children, which may include:
17 (1) Directing the defendant to refrain from abusing the
18 plaintiff or minor children.
19 (2) Granting possession to the plaintiff of the residence or
20 household to the exclusion of the defendant by evicting the
21 defendant and/or restoring possession to the plaintiff when the
22 residence or household is jointly owned or leased by the parties
23 [or], is owned or leased by the entireties or is owned or leased
24 solely by the plaintiff.
25 (3) When the defendant has a duty to support the plaintiff
26 or minor children living in the residence or household and the
27 defendant is the sole owner or lessee, granting possession to
28 the plaintiff of the residence or household to the exclusion of
29 the defendant by evicting the defendant and/or restoring
30 possession to the plaintiff, or by consent agreement allowing
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1 the defendant to provide suitable, alternate housing.
2 (4) Awarding temporary custody of and/or establishing
3 temporary visitation rights with regard to minor children. A
4 defendant shall not be granted custody or partial custody where
5 it is alleged in the petition, and the court finds after a
6 hearing under this act, that the defendant abused the minor
7 children of the parties or where the defendant has been
8 convicted of violating 18 Pa.C.S. § 2904 (relating to
9 interference with custody of children) within two calendar years
10 prior to the filing of the petition for protection order. If a
11 plaintiff petitions for a temporary order under section 5(b) and
12 the defendant has partial, shared or full custody of the minor
13 children of the parties by order of court or written agreement
14 of the parties, the custody shall not be disturbed or changed
15 unless the court finds that the defendant is likely to inflict
16 abuse upon the children or to remove the children from the
17 jurisdiction of the court prior to the hearing under section
18 5(a). Nothing in this paragraph shall bar either party from
19 filing a petition for custody under 23 Pa.C.S. Ch. 53 (relating
20 to custody) or under the Pennsylvania Rules of Civil Procedure.
21 The court shall consider, and may impose on a custody award,
22 conditions necessary to assure the safety of the plaintiff and
23 minor children from abuse.
24 (5) After a hearing in accordance with section 5(a),
25 directing the defendant to pay financial support to such persons
26 as defendant has a duty to support. Such a support order is
27 temporary and any beneficiary of the order must petition for
28 support under the provisions of [the Civil Procedural Support
29 Act] 23 Pa.C.S. Ch. 43 (relating to support matters generally)
30 within two weeks of the date of the issuance of the protection
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1 order. If such a petition is not filed that portion of the
2 protection order requiring the defendant to pay support is void.
3 When there is a subsequent ruling on a petition for support
4 under [the Civil Procedural Support Act] 23 Pa.C.S. Ch. 43 the
5 portion of the protection order requiring the defendant to pay
6 support becomes void.
7 (6) Prohibiting the defendant from having any contact with
8 the plaintiff, including, but not limited to, restraining the
9 defendant from entering the place of employment or business or
10 school of the plaintiff and from harassing the plaintiff or
11 plaintiff's relatives or minor children.
12 (7) Ordering the defendant to temporarily relinquish to the
13 sheriff the defendant's weapons which have been used or been
14 threatened to be used in an incident of abuse against the
15 plaintiff or the minor children. The court's order shall provide
16 for the return of the weapons to the defendant subject to such
17 restrictions and conditions as the court shall deem appropriate
18 to protect the plaintiff or minor children from further abuse
19 through the use of weapons.
20 (8) Directing the defendant to pay the plaintiff for
21 reasonable losses suffered as a result of the abuse, including
22 medical, dental, relocation and moving expenses; counseling;
23 loss of earnings or support; attorney fees; and other out-of-
24 pocket losses for injuries sustained.
25 (b) Any protection order or approved consent agreement shall
26 be for a fixed period of time not to exceed one year. The court
27 may amend its order or agreement at any time upon subsequent
28 petition filed by either party.
29 (c) No order or agreement under this act shall in any manner
30 affect title to any real property.
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1 Section 7. Notification.--(a) A copy of any order under
2 this act shall be issued to the plaintiff, the defendant and the
3 police department with appropriate jurisdiction to enforce the
4 order or agreement, in accordance with the provisions of this
5 act or as ordered by the court, district justice, the Municipal
6 Court of Philadelphia or bail commissioners.
7 (b) Upon receipt of an order, the police department shall
8 immediately place the order in a county registry of protection
9 orders. The police department shall assure that the registry is
10 current at all times and that orders are removed upon expiration
11 thereof.
12 Section 8. Emergency Relief.--(a) When, in counties with
13 less than four judges, the court is unavailable [from the close
14 of business at the end of the week to the resumption of business
15 at the beginning of the week] during the business day by reason
16 of duties outside the county, illness or vacation, and when, in
17 counties with at least four judges, the court deems itself
18 unavailable from the close of business at the end of each day to
19 the resumption of business the next morning or from the end of
20 the business week to the beginning of the business week, a
21 petition may be filed before a district justice, bail
22 commissioner or Philadelphia Municipal Court Judge who may grant
23 relief in accordance with section 6(a)(1), (2) or (3) if the
24 district justice [or], bail commissioner or Philadelphia
25 Municipal Court Judge deems it necessary to protect the
26 plaintiff or minor children from abuse, upon good cause shown in
27 an ex-parte proceeding. Immediate and present danger of abuse to
28 the plaintiff or minor children shall constitute good cause for
29 purposes of this section.
30 (b) Any order issued under subsection (a) shall expire as of
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1 the resumption of business of the court at the beginning of the
2 [week or within 72 hours, whichever occurs sooner; at which
3 time, the plaintiff may seek a temporary order from the court.]
4 next business day, at which time the court shall schedule
5 hearings on protection orders entered by district justices, bail
6 commissioners or Philadelphia Municipal Court Judges under
7 subsection (a) AND SHALL REVIEW AND CONTINUE IN EFFECT <--
8 PROTECTION ORDERS THAT ARE NECESSARY TO PROTECT THE PLAINTIFF OR
9 MINOR CHILDREN FROM ABUSE UNTIL THE HEARING, at which time the
10 plaintiff may seek a temporary order from the court.
11 (c) Any emergency order issued under this section and any
12 documentation in support thereof shall be immediately certified
13 to the court. Such certification to the court shall have the
14 effect of commencing proceedings under section 4 and invoking
15 the other provisions of this act. If it is not already alleged
16 in a petition for an emergency order, the plaintiff shall file a
17 verified statement setting forth the abuse of defendant at least
18 five days prior to the hearing. Service of the verified
19 statement shall be made subject to section 4(a).
20 (d) Upon issuance of an emergency order, the district
21 justice, bail commissioner or Philadelphia Municipal Court Judge
22 shall provide the plaintiff instructions regarding the
23 commencement of proceedings in the court of common pleas at the
24 beginning of the next business day and regarding the procedures
25 for initiating a contempt charge should the defendant violate
26 the emergency order. The district justice, a bail commissioner
27 or Philadelphia Municipal Court Judge shall also advise the
28 plaintiff of the existence of programs for victims of domestic
29 violence in the county or in nearby counties and inform the
30 plaintiff of the availability of legal assistance without cost
19870H0418B2671 - 11 -
1 if the plaintiff is unable to pay for them.
2 Section 6. The act is amended by adding sections to read:
3 Section 8.1. Domestic Violence Counselor/Advocate.--A
4 domestic violence counselor/advocate may accompany a party to a
5 hearing under this act.
6 Section 8.2. Disclosure of Addresses.--(a) During the
7 course of a proceeding under this act, the court, district
8 justice, Philadelphia Municipal Court Judge or bail commissioner
9 may consider whether the plaintiff or plaintiff's family is
10 endangered by disclosure of the permanent or temporary address
11 of the plaintiff or minor children.
12 (b) Neither in the pleadings nor during proceedings or
13 hearings under this act shall the court, district justice,
14 Philadelphia Municipal Court Judge or bail commissioner require
15 disclosure of the address of a domestic violence program.
16 Section 7. Section 10 of the act, amended June 23, 1978
17 (P.L.513, No.81), is amended to read:
18 Section 10. Contempt.--(a) Upon violation of a protection
19 order issued under this act, or a court approved consent
20 agreement the court may hold the defendant in indirect criminal
21 contempt and punish him in accordance with the law.
22 (b) Notwithstanding any provision of the law to the contrary
23 any sentence for this contempt may include imprisonment up to
24 six months or a fine not to exceed $1,000 or both and [the] may
25 include other relief set forth in this act. The defendant shall
26 not have a right to a jury trial on such a charge; however, the
27 defendant shall be entitled to counsel.
28 (c) An arrest for violation of an order issued pursuant to
29 this act may be without warrant upon probable cause whether or
30 not the violation is committed in the presence of the police
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1 officer. The police officer may verify, if necessary, the
2 existence of a protection order by telephone or radio
3 communication with the appropriate police department, county
4 registry or issuing authority.
5 (c.1) Subsequent to an arrest, the police officer shall
6 seize all weapons used or threatened to be used during the
7 violation of the protection order or during prior incidents of
8 abuse. As soon as it is reasonably possible, the arresting
9 officer shall deliver the confiscated weapons to the office of
10 the sheriff. The sheriff shall maintain possession of the
11 weapons until the court issues an order specifying the weapons
12 to be relinquished and the persons to whom the weapons shall be
13 relinquished.
14 (d) Subsequent to an arrest the defendant shall be taken by
15 the police officer without unnecessary delay before the court
16 [that issued the order] in the judicial district where the
17 contempt is alleged to have occurred. When that court is
18 unavailable the [defendant shall be arraigned before] police
19 officer shall convey the defendant to a district justice
20 designated as appropriate by local rules of court, or, in cities
21 of the first class [the municipal court, in accordance with the
22 Rules of Criminal Procedure. This section shall not be construed
23 to in any way limit any of the other powers for emergency relief
24 provided in this act.], to a Philadelphia Municipal Court Judge
25 or designated bail commissioner.
26 (e) The defendant shall be afforded a preliminary
27 arraignment without unnecessary delay.
28 (f) This section shall not be construed to in any way limit
29 any of the other powers for emergency relief provided in this
30 act.
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1 (g) A hearing on a charge or allegation of indirect criminal
2 contempt shall not preclude a hearing on other criminal charges
3 underlying the contempt, nor shall a hearing on other criminal
4 charges preclude a hearing on a charge of indirect criminal
5 contempt.
6 (h) Notice shall be given to the defendant, in orders issued
7 pursuant to section 6(a)(2) or (3), of the possible
8 ramifications of resumption of residence in the family domicile
9 contrary to court order. Resumption of co-residence on the part
10 of the plaintiff and defendant shall not nullify the provisions
11 of the court order directing the defendant to refrain from
12 abusing the plaintiff or minor children.
13 Section 8. The act is amended by adding sections to read:
14 Section 10.1. Reporting Abuse and Immunity Therefor.--(a) A
15 person having reasonable cause to believe that a person is being
16 abused may report the information to the local police
17 department.
18 (b) The report should contain the name and address of the
19 abused person, information regarding the nature and extent of
20 the abuse and information which the reporter believes may be
21 helpful to prevent further abuse.
22 (c) A person who makes a report shall be immune from a civil
23 or criminal liability on account of the report unless the person
24 acted in bad faith or with malicious purpose.
25 Section 10.2. Confidentiality.--Unless a victim waives the
26 privilege in a signed writing prior to testimony or disclosure,
27 a domestic violence counselor/advocate shall not be competent
28 nor permitted to testify or to otherwise disclose confidential
29 communications made to or by the counselor/advocate by or to a
30 victim. The privilege shall terminate upon the death of the
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1 victim. Neither the domestic violence counselor/advocate nor the
2 victim shall waive the privilege of confidential communications
3 by reporting facts of physical or sexual assault under the act
4 of November 26, 1975 (P.L.438, No.124), known as the "Child
5 Protective Services Law"; a Federal or State mandatory reporting
6 statute; or a local mandatory reporting ordinance.
7 Section 9. This act shall take effect in 60 days.
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