THE COURTS
Title 231--RULES OF
CIVIL PROCEDURE
PART I. GENERAL
[231 PA. CODE CH. 1900]
Proposed Amendments to the Rules Relating to Protection From Abuse; Recommendation 45
[27 Pa.B. 715] The Domestic Relations Committee proposes the following amendments to the Rules of Civil Procedure relating to Protection From Abuse. The committee solicits comments and suggestions from all interested persons prior to submission of the proposed rule to the Supreme Court.
Written comments relating to the proposed amendments must be received no later than March 28, 1997 and must be directed to: Sophia P. Paul, Esquire, Counsel, Domestic Relations Committee, 429 Forbes Avenue, Suite 300, Pittsburgh, PA 15219, FAX (412) 565-2336, or E-Mail to spaul@supreme.court.state.pa.us.
The explanatory notes which appear in connection with the proposed amendments have been inserted by the Committee for the convenience of those using the rules. They will not constitute part of the rules nor will they be officially adopted or promulgated by the Court.
Annex A
TITLE 231. RULES OF CIVIL PROCEDURE
PART I. GENERAL
CHAPTER 1900. ACTIONS PURSUANT TO PROTECTION FROM ABUSE ACT Rule 1901. Definitions.
As used in this chapter
Act--Protection From Abuse Act No. 206 approved December 19, 1990, 23 Pa.C.S. § 6101 et seq.;
Action--A proceeding for protection from abuses defined in [Section 2] § 6102 of the Act;
Court--The court of common pleas.
Emergency Order--An order entered by a hearing officer, who is a person meeting the definition set forth at 23 Pa.C.S. § 6102.
Temporary Order--An order entered by the court pursuant to 23 Pa.C.S. § 6107.
Rule 1901.1. Venue.
(a) Except as provided in subdivision (b), an action for protection from abuse may be brought in a county in which
(1) the plaintiff resides, either temporarily or permanently, or is employed, or
(2) the defendant may be served, or
(3) the abuse occurred.
(b) If the relief sought includes possession of the residence or household to the exclusion of the defendant, the action shall be brought only in the county in which the residence or household is located.
Rule 1901.2. Scheduling.
Each judicial district shall establish and publish a schedule of times when the court will be available to hear temporary Protection From Abuse matters.
Official Note: When the court is unavailable, emergency relief may be sought from the minor judiciary pursuant to 23 Pa.C.S. § 6110.
[Rule 1902. Commencement of Action.
(a) Except as provided in subdivision (b), an action shall be commenced by filing with the prothonotary a petition setting forth the alleged abuses by the defendant.
(b) Filing in the office of the prothonotary of a certified order of a district justice entered pursuant to 23 Pa.C.S. § 6110 shall constitute the commencement of an action in the court of common pleas.
Official Note: See 23 Pa.C.S. § 6110 conferring emergency jurisdiction on district justices and requiring immediate certification of its order to the court.]
Rule 1901.3. Commencement of Action.
(a) An action shall be commenced by filing with the prothonotary or presenting to the court a petition setting forth the alleged abuses by the defendant. The petition shall be substantially in the form set forth in Rule 1905(b) and shall have as its first page the Notice of Hearing and Order set forth in Rule 1905(a).
(b) An action may be commenced by filing a certified copy of the emergency order entered pursuant to 23 Pa.C.S. § 6110.
[Rule 1903. Service of Order. Enforcement.
(a) Rescinded
Official Note: For service of the petition or certified order of the district justice, see Rule 1930.4.
(b) An order entered under 23 Pa.C.S. §§ 6107 and 6108 shall be served and enforced by such persons and in such manner as the court shall direct in the order.]
Rule 1901.4. Service and Registration of Order.
(a) Service of the petition and temporary order shall be in accordance with Rule 1930.4.
(b) An Affidavit of Service substantially in the form set forth in Rule 1905(d) shall be filed with the prothonotary.
(c) A certified copy of every protection order shall be submitted for registration to
(1) the prothonotary of the county in which the order was entered, as well as any other county in which plaintiff believes protection may be necessary; or
(2) the statewide registry. Orders submitted to the statewide registry shall be accompanied by the supplemental information form set forth in Rule 1905(f).
Official Note: Counties will not be required to maintain registries after the statewide registry is established and is fully operational, pursuant to 23 Pa.C.S. § 6104(b).
Rule 1901.5. Enforcement.
(a) A police officer shall arrest a defendant for violating an order issued by or registered in any court within this Commonwealth pursuant to the Act where the order is
(1) registered in accordance with the Act; or
(2) can be verified by radio, telephone or similar means of communication.
(b) A complaint for indirect criminal contempt shall be completed and signed by either the police officer or the plaintiff. Neither plaintiff's presence nor signature shall be required for such filing.
Rule [1904] 1901.6. No responsive pleading required.
No pleading need be filed in response to the petition or the certified order and all averments not admitted shall be deemed denied.
Official Note: For procedures as to the time and manner of hearings and issuance of orders [ex parte or after hearing], see 23 Pa.C.S. § 6107. For provisions as to the scope of relief available, see 23 Pa.C.S. § 6108. For provisions as to contempt for violation of an order or consent agreement, see 23 Pa.C.S. § 6114.
Rule [1905] 1901.7. Decision. No Post-Trial Relief.
(a) The decision of the court [shall be governed by Rule 1038(b) and (c)] may consist only of general findings but shall dispose of all claims for relief. The court's order shall be rendered substantially in the form set forth in Rule 1905(e).
(b) No motions for post-trial relief may be filed to the final order.
Official Note: The procedure relating to Motions for Reconsideration is set forth in Rule 1930.2.
Rule 1905. Standard Forms for Use in Protection from Abuse Matters.
(a) The Notice of Hearing and Order required by Rule 1901.3 shall be substantially in the following form:
(Caption)
NOTICE OF HEARING AND ORDER YOU HAVE BEEN ORDERED TO APPEAR IN COURT. If you fail to do so, the court may enter an Order in your absence which may evict you from your residence, and cause you to lose other important rights.
You MUST obey the order which is attached until the hearing. If you disobey this Order, the police may arrest you. Under federal law, this Order is enforceable anywhere in the United States, and any violation of this Order in another state will result in federal proceedings against you. In addition, if you are subject to a FINAL PROTECTION ORDER, federal law will prohibit you from possessing, transporting, or accepting a firearm.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. YOU HAVE THE RIGHT TO HAVE AN ATTORNEY REPRESENT YOU AT THE HEARING. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
_________________ County Lawyer Referral Service
[insert Street Address]
[insert City, State, and ZIP]
[insert Phone Number](b) The Petition in an action filed pursuant to the Act shall be substantially in the following form:
(Caption)
PETITION FOR PROTECTION FROM ABUSE 1. My name is __________
I am filing this Petition on behalf of: [ ] Myself [ ] Another Person
If you checked ''myself,'' please answer all questions referring to yourself as ''plaintiff.'' If you checked ''another person,'' please answer all questions referring to that person as the ''plaintiff, and provide your address here:
If you checked ''Another Person,'' also indicate your relationship with plaintiff:
[ ] parent of minor plaintiff(s) [ ] guardian ad litem of minor plaintiff(s) [ ] adult household member with
minor plaintiff(s)[ ] court appointed guardian of
incompetent plaintiff(s)2. [ ] Plaintiff's address is confidential
or
[ ] Plaintiff's address is: __________
__________3. Defendant is _________________ , who resides at _________________ . His/her date of birth is ______ and Social Security No. is ______ .
[ ] Check here if defendant is 17 years old or younger.
4. Indicate the relationship between plaintiff and defendant:
[ ] Spouse [ ] Current or former sexual/
intimate partner[ ] Other relationship by blood or marriage:
_________________
_________________
_________________[ ] Ex-spouse [ ] Parent/Child [ ] Parents of the same child/ren [ ] Brother/Sister 5. I am asking the court to order the defendant to leave the following residence:
_________________ , which is:[ ] owned by (list all owners): ___________________________ ,
[ ] rented by (list all names): ___________________________ .
6. Plaintiff and defendant are the parents of the following child/ren:
Name(s) Age(s) who reside at (list address unless confidential) _________________ ______ ___________________________ _________________ ______ ___________________________ _________________ ______ ___________________________ _________________ ______ ___________________________ 7. The following minor child/ren who are not related to the defendant presently live with plaintiff:
Name(s) Age(s) plaintiff's relationship to child/ren _________________ ______ ___________________________ _________________ ______ ___________________________ _________________ ______ ___________________________ _________________ ______ ___________________________ 8. The facts of the most recent incident of abuse are as follows:
Date: ______ Time: ______ Place: __________
Describe in detail what happened, including any physical or sexual abuse, threat, injury, or incident of stalking:
__________
__________
__________
__________
__________
__________
__________
__________
__________9. The defendant has committed prior acts of abuse against me, my minor child/ren, or the plaintiff (if I am filing on behalf of someone else). List examples of such abuse, including any threats, injuries, or incidents of stalking, and state when such acts of abuse occurred:
__________
__________
__________
__________
__________
__________
__________
__________
__________10. Defendant has used or threatened to use the following weapon(s) against plaintiff or the minor child/ren listed above:
__________
__________
__________
__________11. If plaintiff and defendant are parents of any minor child/ren, is there an existing court Order regarding their custody? ______ . Who has primary custody under that Order? _________________ . If you are now seeking an Order of child custody as part of this petition, list the following information:
(a) Where has each child resided during the past five years?
Child's name Person(s) child lived with Address, unless confidential When ______ _________________ _________________ _____ ______ _________________ _________________ _____ ______ _________________ _________________ _____ ______ _________________ _________________ _____ (b) List any other persons who are known to have or claim a right to custody of each child listed above.
Name Address Basis of Claim _________________ _________________ _________________ _________________ _________________ _________________ _________________ _________________ _________________ _________________ _________________ _________________ 12. Have you and the defendant been involved in any of the following court actions? (If you are filing this Petition on behalf of another person, please answer this and all questions using that person as the plaintiff.)
[ ] Divorce [ ] Custody [ ] Support [ ] Protection from Abuse
If you checked any of the above, briefly indicate when and where the case was filed and the court number, if known:
__________
__________13. Defendant owes a duty of support to plaintiff and/or the minor child/ren.
14. As a result of the abuse described above, I have suffered financial losses.
15. There is an immediate and present danger of additional abuse from the defendant.
FOR THE REASONS SET FORTH ABOVE, I REQUEST THAT THE COURT ENTER A TEMPORARY ORDER, and AFTER HEARING, A FINAL ORDER THAT WOULD DO THE FOLLOWING (CHECK FORMS OF RELIEF REQUESTED):
[ ] A. Restrain defendant from abusing, threatening, harassing, or stalking plaintiff and/or the minor child/ren in any place where they may be found.
[ ] B. Evict/exclude defendant from plaintiff's residence and prevent defendant from living at or attempting to enter such residence.
[ ] C. Require defendant to provide plaintiff with other suitable housing.
[ ] D. Award plaintiff temporary custody of the minor child/ren and place appropriate restrictions on contact between defendant and the child/ren.
[ ] E. Order defendant to pay temporary support for plaintiff and the minor child/ren, including medical support and payment of the rent or mortgage on plaintiff's residence.
[ ] F. Prohibit defendant from having any contact with plaintiff and/or the minor child/ren, either in person, by telephone, or in writing, including but not limited to any contact at plaintiff's school, business, or place of employment.
[ ] G. Prohibit defendant from harassing or having any contact with plaintiff's relatives and the child/ren listed in this Petition.
[ ] H. Order defendant to temporarily relinquish weapons to the Sheriff of this county.
[ ] I. Direct defendant to pay plaintiff for the reasonable financial losses suffered as the result of the abuse.
[ ] J. Order defendant to pay plaintiff's reasonable attorney fees.
[ ] K. Grant such other relief as the court deems appropriate.
[ ] L. I also request that the Judge order the police or other law enforcement agency to serve defendant with a copy of this Petition, any Order issued, and the Order for hearing. I will inform the police of any addresses, other than defendant's residence, where he or she can be served.
__________
Petitioner
VERIFICATION I verify that I am the Petitioner in the present action and that the facts and statements contained in the above Petition are true and correct to the best of my knowledge, information, and/or belief.
I understand that any false statements are made subject to the penalties of 18 Pa.C.S. § 4094, relating to unsworn falsification to authorities.
(c) The Temporary Order of Court entered pursuant to the Act shall be substantially in the following form:
(Caption) Defendant's date of birth: ___________________________
Defendant's Social Security #: ___________________________
TEMPORARY PROTECTION FROM ABUSE ORDER AND NOW, this ______ day of _________________ , ____ , upon consideration of the attached Petition for Protection from Abuse, the court hereby enters the following Temporary Order:
1. The defendant shall not abuse, threaten, stalk, or harass the plaintiff and/or the minor child/ren in any place where they might be found. The names of the persons protected under this Order are as follows:
2. Plaintiff is granted exclusive possession of the residence where she/he resides which is:
[ ] located at ___________________________[ ] a confidential location.
After notice to the plaintiff, defendant may enter the residence (other than a confidential location), on one occasion only, to retrieve his/her clothing and other personal effects, provided that defendant shall be in the company of a law enforcement officer when such retrieval is made. Until a final hearing in this matter, defendant shall otherwise have no right to enter or be present on these premises.
3. Pending the outcome of the final hearing in this matter, plaintiff is awarded temporary custody of the following minor child/ren:
Until the final hearing, contact, if any, between defendant and the child/ren shall be limited to the following:
The local law enforcement agency in the jurisdiction where the child/ren are located shall ensure that the child/ren are placed in the care and control of the plaintiff in accordance with the terms of this Order.
4. Defendant shall immediately relinquish the following weapons to the local law enforcement agency for delivery to the Sheriff's office:
5. Defendant is prohibited from having any contact with plaintiff at any location, including but not limited to any contact at plaintiff's school, business, or place of employment. Defendant shall not contact plaintiff by telephone or by any other means, except as might be permitted under Paragraph 3 of this Order relating to child custody. Defendant shall not harass or have any contact with plaintiff's relatives, except for such contact with their minor child/ren as is permitted under Paragraph 3 hereof. Defendant is specifically ordered to stay away from the following locations during the duration of this Order:
6. The following additional relief is granted: __________
__________
__________
__________
__________7. A copy of this Order shall be served on the police department where plaintiff resides, the police department where defendant resides, the Pennsylvania state police, and any other agency specified hereafter:
8. Defendant is hereby notified that if he attempts to return to the plaintiff's residence or violates this Order in any other way, he is subject to arrest for indirect criminal contempt, which is punishable by a fine of up to $1,000.00 and/or up to six months in jail. Defendant is further notified that a violation of this Order may subject him/her to various federal charges and penalties. Consent of the plaintiff to defendant's return to the residence shall not invalidate this Order, which can only be changed or modified through the filing of appropriate court papers for that purpose.
9. THIS ORDER APPLIES IMMEDIATELY TO DEFENDANT AND SHALL REMAIN IN EFFECT UNTIL MODIFIED OR TERMINATED BY THIS COURT AFTER NOTICE AND HEARING.
10. THIS ORDER SUPERSEDES ANY PRIOR ORDER, INCLUDING ANY PRIOR ORDER RELATING TO CHILD CUSTODY.
NOTICE OF LAW ENFORCEMENT OFFICIALS This Order shall be enforced by the police who have jurisdiction over the plaintiff's residence OR any location where a violation of this order occurs OR where the defendant may be located. If defendant violates any provisions of this Order, defendant SHALL be arrested on the charge of Indirect Criminal Contempt. An arrest for violation of this Order may be made without warrant, based solely on probable cause, whether or not the violation is committed in the presence of law enforcement.
Subsequent to an arrest, the law enforcement officer shall seize all weapons used or threatened to be used during the violation of this Order OR during prior incidents of abuse. Weapons must forthwith be delivered to the Sheriff's office of the county which issued this Order, which office shall maintain possession of the weapons until further Order of this court, unless the weapon/s are evidence of a crime, in which case, they shall remain with the law enforcement agency whose officer made the arrest.
BY THE COURT:
__________
J.(d) The form of the Affidavit of Service in a Protection From Abuse matter shall be substantially in the following form:
(Caption)
AFFIDAVIT OF SERVICE I, _________________ the undersigned, hereby state that I served a copy of the Petition and Temporary Order in the above-captioned action upon the Defendant by handing the papers to ______ at the following address: _________________ on the ______ day of _________________ , 19 __ , at approximately ______ o'clock __ .m.
I verify that the statements made in this Affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities.
Date:
(Signature)
(Title)
(Address)(e) The Final Order of Court entered pursuant to the Act shall be substantially in the following form:
(Caption)
FINAL ORDER OF COURT NOTICE TO THE DEFENDANT: IF YOU VIOLATE PARAGRAPH 1, 2 OR 3 OF THIS COURT ORDER, YOU WILL BE ARRESTED ON THE CHARGE OF INDIRECT CRIMINAL CONTEMPT WHICH IS PUNISHABLE BY A FINE OF UP TO $1,000 AND A JAIL SENTENCE OF UP TO SIX MONTHS.
AND NOW, this ______ day of _________________ , 19 __ , upon consideration of the Petition in the above-captioned case, _________________ , it is ORDERED, ADJUDGED and DECREED as follows:
Note: Space is provided to allow inclusion of the information about the terms under which the order was entered, e.g. that the defendant, though properly served, failed to appear, or that the order was entered with the consent of the parties.
1. Except as otherwise provided in paragraph 3, Defendant, [DEFENDANT'S NAME], [DEFENDANT'S ADDRESS] is
(a) prohibited from having ANY CONTACT with Plaintiff, [PLAINTIFF'S NAME], or Plaintiff's minor child(ren) [NAMES OF PROTECTED CHILDREN].
(b) directed to refrain from abusing, harassing or stalking Plaintiff or the minor child(ren) named in (a); and
(c) prohibited from entering the place of employment, business or school of the Plaintiff or of the minor child(ren) named in (a).
2. Defendant is completely excluded from the residence at [ADDRESS FROM WHICH DEFENDANT IS EXCLUDED] or any other residence where Plaintiff may live. Exclusive possession of the residence is granted to Plaintiff; Defendant shall have no right or privilege to enter or be present on the premises.
3. Custody of the parties' minor children, [NAMES OF THE CHILDREN SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH], shall be as follows: [STATE TO WHOM PRIMARY PHYSICAL CUSTODY AWARDED; STATE TERMS OF PARTIAL CUSTODY OR VISITATION, IF ANY.]
4. Defendant shall immediately turn over to the local law enforcement agency, or delivery to the Sheriff's Office, any and all weapons used or threatened to be used by defendant in an act of abuse against Plaintiff and/or the minor child/ren. Defendant is prohibited from acquiring or possessing any other weapons for the duration of this order.
5. If there is no existing support or alimony pendente lite order, the Defendant is directed to pay temporary support for: [INSERT THE NAMES OF THE PERSONS FOR WHOM SUPPORT IS TO BE PAID] as follows: [INSERT AMOUNT, FREQUENCY AND OTHER TERMS AND CONDITIONS OF THE SUPPORT ORDER]. This order for support shall remain in effect until a final support order is entered by this Court. However, this order shall lapse automatically if the Plaintiff does not file a complaint for support with the court within fifteen days of the date of this order. The amount of this temporary order does not necessarily reflect Defendant's correct support obligation, which shall be determined in accordance with the guidelines at the support hearing. Any adjustments in the final amount of support shall be credited, retroactive to this date, to the appropriate party.
6. The costs of this action are waived as to the Plaintiff and imposed on Defendant.
7. [ ] Defendant shall pay $ ______ to Plaintiff as compensation for Plaintiff's losses, which are as follows:
OR
[ ] Plaintiff is granted leave to present a petition, with appropriate notice to Defendant, to [INSERT THE NAME OF THE JUDGE OR COURT TO WHICH THE PETITION SHOULD BE PRESENTED] requesting recovery of out-of-pocket losses. The petition shall include an exhibit itemizing all claimed out-of-pocket losses, copies of all bills and estimates of repair, and an order scheduling a hearing. No fee shall be required by the Prothonotary's office for the filing of this petition.
8. The following additional relief is granted as authorized by § 6108 of the Act:
__________
__________
__________
__________
__________9. All provisions of this order shall expire in one year, on [INSERT EXPIRATION DATE].
NOTICE TO LAW ENFORCEMENT OFFICIALS The police who have jurisdiction over the Plaintiff's residence OR any location where a violation of this order occurs OR where the Defendant may be located, shall enforce this order.
If Defendant violates any provision of paragraph 1, 2 or 3 above, Defendant SHALL be arrested on the charge of Indirect Criminal Contempt. An arrest for violation of this order may be without warrant, based solely on probable cause, whether or not the violation is committed in the presence of the police.
Subsequent to an arrest, the police officer shall seize all weapons used or threatened to be used during the violation of the protection order or during prior incidents of abuse. The [INSERT THE APPROPRIATE NAME OR TITLE] shall maintain possession of the weapons until further order of this Court.
When the Defendant is placed under arrest for violation of the order, the Defendant shall be taken to [INSERT THE APPROPRIATE AUTHORITY OR AUTHORITIES BEFORE WHOM DEFENDANT IS TO BE ARRAIGNED]. A ''Complaint for Indirect Criminal Contempt'' shall then be completed and signed by the police officer OR the Plaintiff. Plaintiff's presence and signature are not required to file the complaint.
If sufficient grounds for violation of this order are alleged, the Defendant shall be arraigned, bond set and both parties given notice of the date of the hearing.
BY THE COURT:
J.Consented:
(f) The supplemental information form required by Rule 1901.4 shall be substantially in the following form:
(Caption)
SUPPLEMENTAL INFORMATION Order entered in the _________________ Judicial District Expiration Date:
Contact/Person from whom copy of order can be obtained:
Contact's telephone number:
Plaintiff Information Sex:
DOB:
Race/Ethnic Background:
Defendant Identifying Information: Social Security #: Sex: DOB: Height:
Weight: Eyes: Hair:
Race/Ethnic Background: Complexion:
Distinguishing features (scars, tattoos, facial hair, disability, etc.)
Alias(es)
Cautionary Statement:
Note: The cautionary statement is intended to include information about defendant which may be of use to the police officers responsible for enforcing the order, e.g. black belt in karate.
Defendant's Telephone #:
Defendant's Driver's License #: State: Vehicle Make, Model and Year:
Explanatory Comment--Rule 1905 Forms The forms are substantially based on the standard forms used by the Pennsylvania Coalition Against Domestic Violence.
[Pa.B. Doc. No. 97-179. Filed for public inspection February 7, 1997, 9:00 a.m.]
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