For the Defense - Vol. 8, Issue 3 - 16

3. negotiate terms for an extension of the temporary
PFA; or
Temporary Order Continued
4. accept the imposition of a final PFA (maximum
three-year term in Pennsylvania).
The individual facts of your situation obviously have an impact
on the courses of action both likely and available, as well as the
potential outcomes. Regardless of the outcome, you have options
in deciding how to proceed.
Dismissal of Temporary PFA
This outcome is the best-case scenario for the defendant who
has been wrongly accused, whether it occurs as the result of the
plaintiff failing to appear for the hearing, after a hearing, or as
a result of negotiating a civil stay away order under a divorce or
custody action between the parties. Since the petition has been
dismissed, none of the provisions of the temporary order remain.
The truth has prevailed, and the defendant is free to go about their
life as before the temporary PFA was put in place.
Yet even the act of filing a fictitious claim that gets dismissed can
have a chilling effect on the wrongfully accused defendant. I have
had instances of clients reluctant to co-parent children or proceed
with a divorce action, for fear that any contact with the person
who accused them of violence or threatening conduct would result
in another accusation, as a means of ensuring compliance with the
accuser's demands. The Protection from Abuse Act was obviously
not enacted with this type of manipulation in mind. The Act itself
has provisions addressing the filing of false claims.
Although the accused may wish to simply put the upsetting
experience of defending themselves in court as well as to family
and friends behind, this temporary PFA may still have a lingering
effect on the defendant's life. Though the temporary PFA petition
has been dismissed, the action would still appear in a docket
search. Others may find this record, which could have a negative
impact on the defendant's professional and personal life in ways
not immediately apparent.
In the instance the temporary PFA remains in place for a period
of time, due either to continuances or an agreement reached
between the parties, defense counsel can work towards gathering
evidence and witnesses to dispute the temporary PFA in a hearing
in order to seek a dismissal or allow it to expire. Which course of
action you choose here is largely dependent upon several factors,
including whether the plaintiff is amenable to considering a
resolution that does not involve a final PFA order.
You may decide to apply for an expungement once the temporary
PFA order is dismissed. Like all legal courses of action, whether this
remedy is appropriate for your client is largely fact-dependent, one
significant factor being whether this wrongful accusation is the
only blemish on an otherwise spotless record, or does your client
have other matters discoverable in a public records search. How
heavily the weight of this wrongful accusation impacts the client
varies according to your client's circumstances.
Expungement
Pennsylvania caselaw recognizes that temporary PFA orders
Since the temporary PFA order was
that are dismissed without proceeding to a final hearing, may be
expunged from public record.2
granted in an ex parte proceeding, it would violate a defendant's
right to due process if that defendant was never afforded the
opportunity to defend against the accusation, yet the accusation
remained public record. The Pennsylvania Superior Court stated:
" [J]ustice demands that appellant be returned to a position as
near as possible as to that which [he or she] enjoyed prior to the
[commencement of the action], namely, an unsullied record. " 3
Expungement provides the opportunity for a clean slate, which
may mean a great deal, if this is the accused's first and only contact
with the court system. Keep in mind that this remedy exists only if
the temporary PFA order was dismissed without a hearing, without
subsequent violations.4
16 For The Defense l Vol. 8, Issue 3
For the Defense - Vol. 8, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 3
