Stamus v. Dutcavich

938 A.2d 1098

Monica C. STAMUS, Appellant v. Michael J. DUTCAVICH, Appellee.

No. 1797 MDA 2006.

Superior Court of Pennsylvania.

Submitted February 26, 2007.

Filed December 14, 2007.

Jennifer B. Ayers, Williamsport, for appellant.

Michael F. Salisbury, Lock Haven, for appellee.

BEFORE: FORD ELLIOTT, P.J., BOWES and KELLY, JJ.

OPINION BY KELLY, J.:

¶ 1 Appellant, Monica C. Stamus, appeals from the order entered in the Court of Common Pleas of Clinton County dismissing her Protection from Abuse (PFA) order against Appellee, Michael J. Dutcavich. The issues for our review are whether the trial court erred in: (1) issuing a rule to show cause rather than ordering a contempt hearing upon receipt of an indirect criminal contempt complaint; and (2) dismissing sua sponte the PFA order when neither party had petitioned for amendment or dismissal. We find error in both actions, specifically concluding that the trial court's dismissal of the PFA order was contrary to the plain meaning of 23 Pa.C.S.A. § 6108(d). Accordingly, we vacate the order and remand.

¶ 2 Appellant and Appellee have two children together. On May 19, 2006, Appellant was granted a six-month PFA order against Appellee by the trial court. The order, which was precipitated by Appellee's alleged physical abuse of Appellant, prohibited him from having any contact with her, and, inter alia, also prohibited him from possessing firearms. On September 10, while the children were visiting him for the weekend, Appellee borrowed guns from his father and took the children target shooting. Appellant upon learning of the incident from the children, reported his activity to police as a violation of the PFA order. The police filed a complaint on Appellant's behalf, and the trial court issued a rule to show cause why Appellee should not be held in contempt of the protection order. At a hearing on September 21, the trial court found Appellee's violation to be de minimis and then, without request or petition from either party, dismissed the PFA order.

¶ 3 Our standard of review for PFA orders is well settled. "In the context of a PFA order, we review the trial court's legal conclusions for an error of law or abuse of discretion." Drew v. Drew, 870 A.2d 377, 378 (Pa.Super.2005) (quoting Ferri v. Ferri, 854 A.2d 600, 602 (Pa.Super.2004)). When interpreting statutes, "we exercise plenary review." Commonwealth v. Fedorek, 913 A.2d 893, 896 (Pa.Super.2006) (citing Commonwealth v. Magliocco, 584 Pa. 244, 883 A.2d 479, 481 (2005)).

¶ 4 On appeal, Appellant argues that the trial court committed procedural errors when it dismissed the PFA order. Before examining this claim, we first address the trial court's issuance of a rule to show cause rather than ordering a criminal contempt hearing. The procedure for finding a defendant in violation of a PFA order is set forth in sections 6113 through 6114.1 of the Protection From Abuse Act.¹ When police have filed a complaint of indirect criminal contempt pursuant to section 6113, a contempt hearing must be scheduled within ten days. 23 Pa.C.S.A. § 6113(f). After the hearing, the "court may hold the defendant in indirect criminal contempt and punish the defendant in accordance with law."² 23 Pa.C.S.A. § 6114(a). On the other hand, a private plaintiff may file a petition for civil contempt under section 6114.1, after which the trial court must issue a rule to show cause why the defendant should not be held in contempt. 23 Pa.C.S.A. § 6114.1; In re Contempt of Cullen, 849 A.2d 1207, 1211 (Pa.Super.2004) (noting that rule to show cause is first step court must undertake when holding person in civil contempt) (citing Lachat v. Hinchliffe, 769 A.2d 481, 488-89 (Pa.Super.2001)), appeal denied, 582 Pa. 676, 868 A.2d 1201 (2005).

¶ 5 In the instant case, following Appellee's alleged violation of the PFA order, police filed a section 6113 complaint of indirect criminal contempt against Appellee. (Complaint Alleging Violation of Protection from Abuse Order, filed 9/14/06). Because police had initiated proceedings, the trial court was required by statute to order a prompt contempt hearing. See 23 Pa.C.S.A. § 6113(f). The court therefore erred when it issued a rule to show cause rather than scheduling a contempt hearing. See id.; Cullen, supra.

¶ 6 We similarly find error in the trial court's dismissal of the PFA order when no motion to dismiss was before it. Section 6108(d) states that a "court may amend its order or agreement at any time upon subsequent petition filed by either party." 23 Pa.C.S.A. 6108(d). Section 6117(a) clarifies that "modification [of a PFA order] may be ordered after the filing of a petition for modification, service of the petition and a hearing on the petition." 23 Pa.C.S.A. § 6117(a). Furthermore, section 6108(e)(1)(i) mandates "a duly filed petition, notice to the defendant and a hearing" before an extension of the protection order may be granted. 23 Pa.C.S.A. § 6108(e)(1)(i). Likewise, before a temporary PFA order can be terminated, there must be "notice and hearing." 23 Pa. C.S.A. § 6107(b)(2).

¶ 7 Because neither party in the instant case petitioned for modification of the PFA order as required by sections 6108(d) and 6117(a), the trial court's dismissal was improper; the issue of whether the order should be dismissed was simply not before it. "Courts cannot rule on matters not before them." In the Interest of M.B., 356 Pa.Super. 257, 514 A.2d 599, 600 (1986), aff'd, 517 Pa. 459, 538 A.2d 495 (1988). If the trial court thought that Appellee's actions constituted merely a de minimis violation of the order, it should have declined to find Appellee in contempt and ended the proceedings. See Commonwealth v. Haigh, 874 A.2d 1174, 1178 (Pa.Super.2005) (vacating conviction of indirect criminal contempt when defendant's infraction was de minimis and non-threatening), appeal denied, 585 Pa. 686, 887 A.2d 1240 (2005). However, the trial court exceeded the bounds of the contempt proceeding by addressing the merits of the original PFA order.

¶ 8 Our Court has previously expressed disapproval of a trial court's reliance on issues raised sua sponte when dismissing a PFA order. A trial court "impinge[s] upon the role of the litigants by relying upon issues raised sua sponte to dismiss the proceedings." Commonwealth v. Nelson, 456 Pa.Super. 349, 690 A.2d 728, 730 (1997). This conduct "is sufficient, by itself, to warrant reversal." Id. We find Nelson to be applicable, as the trial court raised the possibility of dismissal sua sponte, then dismissed the proceedings.

¶ 9 Appellee nonetheless maintains that the dismissal was proper under section 6108(d), arguing that Appellant's contempt complaint was a "petition" sufficient to raise not only the issue of his alleged contempt, but also the existence of the PFA order itself. (Appellee's Brief at 2). He essentially contends that the trial court may amend or dismiss a PFA order any time either party complains of an alleged violation of the order. We cannot agree.

¶ 10 Section 6108(d), read in light of section 6117(a), requires that before a court may amend a protection order or agreement a petition to amend must be filed by either party. 23 Pa.C.S.A. §§ 6108(d), 6117(a). "[O]ur reading of a statute is governed in the first instance by the plain meaning of the statutory language in question." Carrozza v. Greenbaum, 591 Pa. 196, 916 A.2d 553, 564 (2007). We are unable to comprehend how a complaint alleging violation of a PFA order, meant to trigger a contempt proceeding and seek enforcement of the order, can in any fashion be considered a petition to amend, as Appellee would have us do. A petition is "a formal written request presented to a court or other official body." Std. Pa. Prac. § 15:18 (citing Black's Law Dictionary, 7th ed. (1999)). In contrast, a section 6113 or 6113.1 complaint, such as that filed by the police on behalf of Appellant in the instant case, clearly seeks enforcement rather than amendment of a PFA order.³ See 23 Pa. C.S.A. § 6108(d). Section 6108(d) thus requires that a party seeking to amend or dismiss a PFA order must file a formal written request specifically seeking either amendment or dismissal of the order.⁴ Id. Because no such petition was submitted, the trial court could not amend, much less dismiss, the PFA order.⁵

¶ 11 We respectfully reject the reasoning set forth in the dissenting opinion, that because Appellant did not object to the trial court's action at the hearing, this issue is waived under Pa.R.A.P. 302(a). In In the Interest of M.B., supra, a petition was filed pursuant to the Child Protective Services Law alleging that a father physically abused his child. Id. at 600. The trial court determined the abuse allegation to be unfounded, but sua sponte declared the child dependent under the Juvenile Act. Id. While the opinion does not reveal whether the father objected to the court's jurisdiction to make a dependency finding at the hearing, the father raised this challenge on appeal. Id. This Court stated: "Courts cannot rule on matters not before them. It is . . . the pleadings which limit the court's agenda. `The pleadings determine the issues in any given case.'" Id. (citations omitted).

The general rule requiring conformity between the allegata and probata is intended to avoid the injustice that would result by confronting a defendant at trial with proof of a cause of action of which he was not put on notice and which he is not prepared to defend.

Id. at 600-01 (quoting Computer Print Systems, Inc. v. Lewis, 281 Pa.Super. 240, 422 A.2d 148, 152 (1980)). Citing the due process requirement that a litigant receive notice of the issues before the court, we stated,

It is even more egregious an error when the lack of notice, through variance from the pleadings, is the court's doing. For when the issue is first stated only in the court's resolution of it, the unsuspecting party has no opportunity during the proceedings to voice his...