act-1990-0-111•Pennsylvania Act 1990-111 — JUDICIAL CODE (42 PA.C.S.) - AMEND
Pennsylvania Act 1990-111 — JUDICIAL CODE (42 PA.C.S.) - AMEND
act-1990-0-1111990 Pa. Act 111Law
Act text
JUDICIAL CODE (42 PA.C.S.) - AMEND
Act of Jul. 11, 1990, P.L. 454, No. 111 Cl. 42
Session of 1990
No. 1990-111
AN ACT
HB 2029
Amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, providing for protection
from abuse; and providing for jurisdiction to enjoin certain
nuisances in the City of Philadelphia.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 1123(a) of Title 42 of the Pennsylvania
Consolidated Statutes is amended by adding paragraphs to read:
§ 1123. Jurisdiction and venue.
(a) General rule.--Except as otherwise prescribed by any
general rule adopted pursuant to section 503 (relating to
reassignment of matters), the Philadelphia Municipal Court shall
have jurisdiction of the following matters:
* * *
(7) Actions to enjoin any nuisance caused by the
operation of a licensee or occurring on licensed premises
subject to the act of April 12, 1951 (P.L.90, No.21), known
as the Liquor Code.
(8) Any action to enjoin a common law nuisance or a
nuisance which involves a violation of any city ordinance or
code, or any penal statute. The action to enjoin may be
brought by any person who resides or has a place of business
within 500 feet of the location of the alleged nuisance.
* * *
Section 2. Title 42 is amended by adding a chapter to read:
CHAPTER 67
PROTECTION FROM ABUSE
Sec.
6701. Short title of chapter.
6702. Definitions.
6703. Effect of departure to avoid abuse.
6704. Registration of order.
6705. Responsibilities of local law enforcement agencies.
6706. Commencement of proceedings.
6707. Hearings.
6708. Relief.
6709. Service of orders.
6710. Emergency relief by minor judiciary.
6711. Domestic violence counselor/advocate.
6712. Disclosure of addresses.
6713. Arrest for violation of order.
6714. Contempt for violation of order or agreement.
6715. Reporting abuse and immunity.
6716. Confidentiality.
6717. Procedure and other remedies.
§ 6701. Short title of chapter.
This chapter shall be known and may be cited as the
Protection From Abuse Act.
§ 6702. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Abuse." The occurrence of one or more of the following acts
between family or household members, sexual or intimate partners
or persons who share biological parenthood:
(1) Attempting to cause or intentionally, knowingly or
recklessly causing bodily injury, serious bodily injury,
rape, spousal sexual assault or involuntary deviate sexual
intercourse with or without a deadly weapon.
(2) Placing by physical menace another in fear of
imminent serious bodily injury.
(3) The infliction of false imprisonment pursuant to 18
Pa.C.S. § 2903 (relating to false imprisonment).
(4) Physically or sexually abusing minor children.
"Adult." An individual who is 18 years of age or older.
"Bail commissioners." Bail commissioners of the Philadelphia
Municipal Court.
"Confidential communications." Information, whether written
or spoken, transmitted between a victim and a domestic violence
counselor or advocate in the course of the relationship and in
confidence by a means which, insofar as the victim is aware,
discloses the information to no third person other than to those
who are present to further the interest of the victim in the
consultation or assistance, to those who are coparticipants in
the counseling service or to those to whom disclosure is
reasonably necessary for the transmission of the information or
an accomplishment of the purpose for which the domestic violence
counselor or advocate is consulted. The term includes
information received or given by the domestic violence counselor
or advocate in the course of the relationship, as well as
advice, reports or working papers given or made in the course of
the relationship.
"Domestic violence counselor/advocate." An individual who is
engaged in a domestic violence program, who provides services to
victims of domestic violence, who has undergone 40 hours of
training and who is under the control of a direct services
supervisor of a domestic violence program, the primary purpose
of which is the rendering of counseling or assistance to victims
of domestic violence.
"Domestic violence program." A nonprofit organization or
program whose primary purpose is to provide services to domestic
violence victims which include, but are not limited to, crisis
hotline; safe homes or shelters; community education; counseling
systems intervention and interface; transportation, information
and referral; and victim assistance.
"Family or household members." Spouses or persons who have
been spouses, persons living as spouses or who lived as spouses,
parents and children, other persons related by consanguinity or
affinity, current or former sexual or intimate partners or
persons who share biological parenthood.
"Minor." An individual who is not an adult.
"Victim." A person who is physically or sexually abused by a
family or household member.
§ 6703. Effect of departure to avoid abuse.
The right of plaintiff to relief under this chapter shall not
be affected by plaintiff leaving the residence or household to
avoid further abuse.
§ 6704. Registration of order.
(a) Registry.--The prothonotary shall maintain a registry in
which it shall enter certified copies of orders entered by
courts from other jurisdictions in this Commonwealth pursuant to
this chapter.
(b) Registration of order in any county.--A plaintiff who
obtains a valid order under this chapter may register that order
in any county within this Commonwealth where the plaintiff
believes enforcement may be necessary. A court shall recognize
and enforce a valid order under this chapter which has been
issued by another court but properly registered with a county
within the judicial district of the court where enforcement is
sought.
(c) Certified copy.--A valid order under this chapter may be
registered by the plaintiff in a county other than the issuing
county by obtaining a certified copy of the order of the issuing
court endorsed by the prothonotary of that court and presenting
that certified order to the prothonotary where the order is to
be registered.
(d) Proof of registration.--Upon receipt of a certified
order for registration, the prothonotary shall provide the
plaintiff with a copy bearing the proof of registration to be
filed with the appropriate law enforcement agency.
§ 6705. Responsibilities of local law enforcement agencies.
The police department of each municipal corporation shall
insure that all its officers and employees are familiar with the
provisions of this chapter. Instruction concerning protection
from abuse shall be made a part of the training curriculum for
all trainee officers.
§ 6706. Commencement of proceedings.
(a) General rule.--An adult or an emancipated minor may seek
relief under this chapter for that person or any parent, adult
household member or guardian ad litem may seek relief under this
chapter on behalf of minor children, or a guardian of the person
of an adult who has been declared incompetent under 20 Pa.C.S.
Ch. 51 Subch. B (relating to appointment of guardian) may seek
relief on behalf of the incompetent adult, by filing a petition
with the court alleging abuse by the defendant.
(b) Affidavit of insufficient funds for fees.--If the
plaintiff files an affidavit stating that plaintiff does not
have funds available to pay the fees for filing and service, the
petition shall be filed and service shall be made without
payment of fees, and leave of court to proceed in forma pauperis
shall not be required.
(c) Determination of indigency.--When the petition is filed
without payment of fees, the court shall determine at the
hearing on the petition whether the plaintiff is able to pay the
costs of filing and service. If the plaintiff is unable to pay
the costs of filing and service, the court may waive the payment
of costs or, if the plaintiff prevails in the action, assign
them to the defendant. This subsection and subsection (b) apply
to courts of common pleas, district justices, or, in
Philadelphia County, to bail commissioners, Philadelphia
Municipal Court Judges or masters who are members of the
Pennsylvania Bar and who are appointed by the President Judge of
the Philadelphia Municipal Court.
(d) Court to adopt means of service.--The court shall adopt
a means of prompt and effective service in those instances where
the plaintiff avers that service cannot be safely effected by an
adult individual other than a law enforcement officer or where
the court so orders.
(e) Service by sheriff.--If the plaintiff files an affidavit
stating that the plaintiff does not have funds available to pay
the costs of filing and service or if the court so orders, the
sheriff or other designated agency or individual shall serve the
petition and order without prepayment of costs.
(f) Service of petition and orders.--The petition and orders
shall be served upon the defendant, and orders shall be served
upon the police departments with appropriate jurisdiction to
enforce the orders. Orders shall be promptly served on the
police. Failure to serve shall not stay the effect of a valid
order.
(g) Assistance and advice to plaintiff.--The courts,
district justices, or, in Philadelphia County, the bail
commissioners, Philadelphia Municipal Court Judges or masters
who are members of the Pennsylvania Bar and who are appointed by
the President Judge of the Philadelphia Municipal Court, shall:
(1) Provide simplified forms and clerical assistance in
English and Spanish to help with the writing and filing of
the petition for a protection order for an individual not
represented by counsel.
(2) Advise a plaintiff not represented by counsel of the
right to file an affidavit stating that the plaintiff does
not have funds available to pay the costs of filing and
service and assist with the writing and filing of the
affidavit.
§ 6707. Hearings.
(a) General rule.--Within ten days of the filing of a
petition under this chapter, a hearing shall be held before the
court, at which the plaintiff must prove the allegation of abuse
by a preponderance of the evidence. The court shall advise the
defendant of the right to be represented by counsel.
(b) Temporary orders.--If a plaintiff petitions for
temporary order for protection from abuse and alleges immediate
and present danger of abuse to the plaintiff or minor children,
the court shall conduct an ex-parte proceeding. The court may
enter such a temporary order as it deems necessary to protect
the plaintiff or minor children when it finds they are in
immediate and present danger of abuse.
(c) Continued hearings.--If a hearing under subsection (a)
is continued, the court may make or extend such temporary orders
under subsection (b) as it deems necessary.
(d) Costs.--If the plaintiff prevails, the court shall
assign costs to the defendant unless the parties agree
otherwise. If the defendant is indigent, costs shall be waived.
§ 6708. Relief.
(a) General rule.--The court may grant any protection order
or approve any consent agreement to bring about a cessation of
abuse of the plaintiff or minor children. The order or agreement
may include:
(1) Directing the defendant to refrain from abusing the
plaintiff or minor children.
(2) Granting possession to the plaintiff of the
residence or household to the exclusion of the defendant by
evicting the defendant or restoring possession to the
plaintiff when the residence or household is jointly owned or
leased by the parties, is owned or leased by the entireties
or is owned or leased solely by the plaintiff.
(3) When the defendant has a duty to support the
plaintiff or minor children living in the residence or
household and the defendant is the sole owner or lessee,
granting possession to the plaintiff of the residence or
household to the exclusion of the defendant by evicting the
defendant or restoring possession to the plaintiff or, by
consent agreement, allowing the defendant to provide suitable
alternate housing.
(4) Awarding temporary custody of or establishing
temporary visitation rights with regard to minor children. A
defendant shall not be granted custody or partial custody
where it is alleged in the petition, and the court finds
after a hearing under this chapter, that the defendant abused
the minor children of the parties or where the defendant has
been convicted of violating 18 Pa.C.S. § 2904 (relating to
interference with custody of children) within two calendar
years prior to the filing of the petition for protection
order. If a plaintiff petitions for a temporary order under
section 6707(b) (relating to hearings) and the defendant has
partial, shared or full custody of the minor children of the
parties by order of court or written agreement of the
parties, the custody shall not be disturbed or changed unless
the court finds that the defendant is likely to inflict abuse
upon the children or to remove the children from the
jurisdiction of the court prior to the hearing under section
6707(a). Nothing in this paragraph shall bar either party
from filing a petition for custody under 23 Pa.C.S. Ch. 53
(relating to custody) or under the Pennsylvania Rules of
Civil Procedure. The court shall consider, and may impose on
a custody award, conditions necessary to assure the safety of
the plaintiff and minor children from abuse.
(5) After a hearing in accordance with section 6707(a),
directing the defendant to pay financial support to those
persons the defendant has a duty to support. The support
order shall be temporary, and any beneficiary of the order
must file a complaint for support under the applicable
provisions of law within two weeks of the date of the
issuance of the protection order. If a complaint for support
is not filed, that portion of the protection order requiring
the defendant to pay support is void. When there is a
subsequent ruling on a complaint for support, the portion of
the protection order requiring the defendant to pay support
expires.
(6) Prohibiting the defendant from having any contact
with the plaintiff, including, but not limited to,
restraining the defendant from entering the place of
employment or business or school of the plaintiff and from
harassing the plaintiff or plaintiff's relatives or minor
children.
(7) Ordering the defendant to temporarily relinquish to
the sheriff the defendant's weapons which have been used or
been threatened to be used in an incident of abuse against
the plaintiff or the minor children. The court's order shall
provide for the return of the weapons to the defendant
subject to any restrictions and conditions as the court shall
deem appropriate to protect the plaintiff or minor children
from further abuse through the use of weapons.
(8) Directing the defendant to pay the plaintiff for
reasonable losses suffered as a result of the abuse,
including medical, dental, relocation and moving expenses;
counseling; loss of earnings or support; and other out-of-
pocket losses for injuries sustained. In addition to out-of-
pocket losses, the court may direct the defendant to pay
reasonable attorney fees.
(b) Duration and amendment of order or agreement.--A
protection order or approved consent agreement shall be for a
fixed period of time not to exceed one year. The court may amend
its order or agreement at any time upon subsequent petition
filed by either party.
(c) Title to real property unaffected.--No order or
agreement under this chapter shall in any manner affect title to
any real property.
§ 6709. Service of orders.
(a) Issuance.--A copy of an order under this chapter shall
be issued to the plaintiff, the defendant and the police
department with appropriate jurisdiction to enforce the order or
agreement in accordance with the provisions of this chapter or
as ordered by the court, district justice, or, in Philadelphia
County, by a bail commissioner, Philadelphia Municipal Court
Judge or master who is a member of the Pennsylvania Bar and who
is appointed by the President Judge of the Philadelphia
Municipal Court.
(b) Placement in county registry.--Upon receipt of an order,
the police department shall immediately place the order in a
county registry of protection orders. The police department
shall assure that the registry is current at all times and that
orders are removed upon expiration thereof.
§ 6710. Emergency relief by minor judiciary.
(a) General rule.--When, in counties with less than four
judges, the court is unavailable during the business day by
reason of duties outside the county, illness or vacation, and
when, in counties with at least four judges, the court deems
itself unavailable from the close of business at the end of each
day to the resumption of business the next morning or from the
end of the business week to the beginning of the business week,
a petition may be filed before a district justice, or, in
Philadelphia County, before a bail commissioner, Philadelphia
Municipal Court Judge or master who is a member of the
Pennsylvania Bar and who is appointed by the President Judge of
the Philadelphia Municipal Court, who may grant relief in
accordance with section 6708(a)(1) and (2) or (1) and (3)
(relating to relief), if the district justice, or, in
Philadelphia County, the bail commissioner, Philadelphia
Municipal Court Judge or master who is a member of the
Pennsylvania Bar and who is appointed by the President Judge of
the Philadelphia Municipal Court, deems it necessary to protect
the plaintiff or minor children from abuse upon good cause shown
in an ex parte proceeding. Immediate and present danger of abuse
to the plaintiff or minor children shall constitute good cause
for the purposes of this subsection.
(b) Expiration of order.--An order issued under subsection
(a) shall expire as of the resumption of business of the court
at the beginning of the next business day, at which time the
court shall schedule hearings on protection orders entered by
district justices, or, in Philadelphia County, by bail
commissioners, Philadelphia Municipal Court Judges or masters
who are members of the Pennsylvania Bar and who are appointed by
the President Judge of the Philadelphia Municipal Court, under
subsection (a) and shall review and continue in effect
protection orders that are necessary to protect the plaintiff or
minor children from abuse until the hearing, at which time the
plaintiff may seek a temporary order from the court.
(c) Certification of order to court.--An emergency order
issued under this section and any documentation in support
thereof shall be immediately certified to the court. The
certification to the court shall have the effect of commencing
proceedings under section 6706 (relating to commencement of
proceedings) and invoking the other provisions of this chapter.
If it is not already alleged in a petition for an emergency
order, the plaintiff shall file a verified statement setting
forth the abuse of defendant at least five days prior to the
hearing. Service of the verified statement shall be made subject
to section 6706.
(d) Instructions regarding the commencement of
proceedings.--Upon issuance of an emergency order, the district
justice, or, in Philadelphia County, the bail commissioner,
Philadelphia Municipal Court Judge or master who is a member of
the Pennsylvania Bar and who is appointed by the President Judge
of the Philadelphia Municipal Court, commissioner or
Philadelphia Municipal Court Judge shall provide the plaintiff
instructions regarding the commencement of proceedings in the
court of common pleas at the beginning of the next business day
and regarding the procedures for initiating a contempt charge
should the defendant violate the emergency order. The district
justice, or, in Philadelphia County, the bail commissioner,
Philadelphia Municipal Court Judge or master who is a member of
the Pennsylvania Bar and who is appointed by the President Judge
of the Philadelphia Municipal Court, shall also advise the
plaintiff of the existence of programs for victims of domestic
violence in the county or in nearby counties and inform the
plaintiff of the availability of legal assistance without cost
if the plaintiff is unable to pay for them.
§ 6711. Domestic violence counselor/advocate.
A domestic violence counselor/advocate may accompany a party
to a hearing under this chapter.
§ 6712. Disclosure of addresses.
During the course of a proceeding under this chapter, the
court, district justice, or, in Philadelphia County, the bail
commissioner, Philadelphia Municipal Court Judge or master who
is a member of the Pennsylvania Bar and who is appointed by the
President Judge of the Philadelphia Municipal Court, may
consider whether the plaintiff or plaintiff's family is
endangered by disclosure of the permanent or temporary address
of the plaintiff or minor children. Neither in the pleadings nor
during proceedings or hearings under this chapter shall the
court, district justice, or, in Philadelphia County, the bail
commissioner, Philadelphia Municipal Court Judge or master who
is a member of the Pennsylvania Bar and who is appointed by the
President Judge of the Philadelphia Municipal Court, require
disclosure of the address of a domestic violence program.
§ 6713. Arrest for violation of order.
(a) General rule.--An arrest for violation of an order
issued pursuant to this chapter may be without warrant upon
probable cause whether or not the violation is committed in the
presence of the police officer. The police officer may verify,
if necessary, the existence of a protection order by telephone
or radio communication with the appropriate police department,
county registry or issuing authority.
(b) Seizure of weapons.--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. As soon as it is reasonably possible, the
arresting officer shall deliver the confiscated weapons to the
office of the sheriff. The sheriff shall maintain possession of
the weapons until the court issues an order specifying the
weapons to be relinquished and the persons to whom the weapons
shall be relinquished.
(c) Procedure following arrest.--Subsequent to an arrest,
the defendant shall be taken by the police officer without
unnecessary delay before the court in the judicial district
where the contempt is alleged to have occurred. When that court
is unavailable, the police officer shall convey the defendant to
a district justice designated as appropriate by local rules of
court, or, in Philadelphia County, to a bail commissioner,
Philadelphia Municipal Court Judge or master who is a member of
the Pennsylvania Bar and who is appointed by the President Judge
of the Philadelphia Municipal Court.
(d) Preliminary arraignment.--The defendant shall be
afforded a preliminary arraignment without unnecessary delay.
(e) Other emergency powers unaffected.--This section shall
not be construed to in any way limit any of the other powers for
emergency relief provided in this chapter.
(f) Hearing.--A hearing on a charge or allegation of
indirect criminal contempt shall not preclude a hearing on other
criminal charges underlying the contempt, nor shall a hearing on
other criminal charges preclude a hearing on a charge of
indirect criminal contempt.
(g) Notice.--Notice shall be given to the defendant, in
orders issued pursuant to section 6708 (relating to relief), of
the possible ramifications of resumption of residence in the
family domicile contrary to court order. Resumption of co-
residence on the part of the plaintiff and defendant shall not
nullify the provisions of the court order directing the
defendant to refrain from abusing the plaintiff or minor
children.
§ 6714. Contempt for violation of order or agreement.
(a) General rule.--Upon violation of a protection order
issued under this chapter or a court-approved consent agreement,
the court may hold the defendant in indirect criminal contempt
and punish the defendant in accordance with law.
(b) Trial and punishment.--A sentence for contempt under
this chapter may include imprisonment up to six months or a fine
not to exceed $1,000, or both, and may include other relief set
forth in this chapter. The defendant shall not have a right to a
jury trial on such a charge; however, the defendant shall be
entitled to counsel.
§ 6715. Reporting abuse and immunity.
(a) Reporting.--A person having reasonable cause to believe
that a person is being abused may report the information to the
local police department.
(b) Contents of report.--The report should contain the name
and address of the abused person, information regarding the
nature and extent of the abuse and information which the
reporter believes may be helpful to prevent further abuse.
(c) Immunity.--A person who makes a report shall be immune
from a civil or criminal liability on account of the report
unless the person acted in bad faith or with malicious purpose.
§ 6716. Confidentiality.
Unless a victim waives the privilege in a signed writing
prior to testimony or disclosure, a domestic violence
counselor/advocate shall not be competent nor permitted to
testify or to otherwise disclose confidential communications
made to or by the counselor/advocate by or to a victim. The
privilege shall terminate upon the death of the victim. Neither
the domestic violence counselor/advocate nor the victim shall
waive the privilege of confidential communications by reporting
facts of physical or sexual assault under the act of November
26, 1975 (P.L.438, No.124), known as the Child Protective
Services Law, a Federal or State mandatory reporting statute or
a local mandatory reporting ordinance.
§ 6717. Procedure and other remedies.
Unless otherwise indicated in this chapter, a proceeding
under this chapter shall be in accordance with applicable
general rules and shall be in addition to any other available
civil or criminal remedies.
Section 3. This act shall take effect in 60 days.
APPROVED--The 11th day of July, A. D. 1990.
ROBERT P. CASEY
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