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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
L.J.R., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
Z.L.V.H., :
:
Appellant : No. 519 MDA 2020
Appeal from the Order Entered February 18, 2020
in the Court of Common Pleas of York County
Civil Division at No(s): 18-FC-1329-12
BEFORE: KUNSELMAN, J., McLAUGHLIN, J. and STRASSBURGER, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 12, 2021
Z.L.V.H. appeals from the order entered on February 18, 2020,
denying his petition for the expungement of a temporary order entered
against him pursuant to the Protection from Abuse (PFA) Act, 23 Pa.C.S.A.
§§ 6101-6122. After review, we reverse the order and remand to the trial
court with instructions.
We summarize the factual and procedural background of this case as
follows. On June 29, 2018, L.J.R., Z.L.V.H’s girlfriend, filed a PFA petition
seeking a temporary protective order against Z.L.V.H., followed by a final
order after a hearing on the matter. That same day, L.J.R.’s petition for the
temporary PFA order was granted and a hearing was scheduled for July 12,
2018. Prior to the hearing, on July 6, 2018, L.J.R. filed a motion to withdraw
* Retired Senior Judge assigned to the Superior Court.
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her PFA petition. On July 10, 2018, L.J.R.’s motion was granted and the
temporary PFA order was vacated without a final hearing being held.
On January 29, 2020, Z.L.V.H. filed a petition for expungement of the
June 29, 2018 temporary PFA order, wherein he claimed the order was
harming his reputation and ability to seek employment. Z.L.V.H.’s Petition
to Expunge, 1/29/2020, at 2 (pagination provided). A hearing was held on
the matter on February 6, 2020,1 after which, on February 18, 2020, the
trial court denied Z.L.V.H.’s petition for expungement. Specifically, the trial
court relied on Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981),
finding that insufficient time had elapsed between the PFA petition and the
request for expungement.2 As a result, the trial court dismissed Z.L.V.H.’s
petition without prejudice, and provided Z.L.V.H. leave to re-file his petition
for expungement after one year following the date of entry of the order, i.e.,
February 18, 2021.
1 L.J.R. did not participate in the hearing.
2 To provide background, in Wexler, our Supreme Court declared that in the
case of a request to expunge a criminal arrest record, the court “must
balance the individual’s right to be free from the harm attendant to the
maintenance of the arrest record against the Commonwealth’s interest in
preserving such records.” 431 A.2d at 879. In conducting this balancing
test, certain factors should be weighed, including, but not limited to, “the
strength of the Commonwealth’s case against the petitioner, the reasons the
Commonwealth gives for wishing to retain the records, the petitioner’s age,
criminal record, and employment history, the length of time that has
elapsed between the arrest and the petition to expunge, and the
specific adverse consequences the petitioner may endure should
[expungement] be denied.” Id. (emphasis added).
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This timely-filed appeal followed.3 On appeal, Z.L.V.H. presents the
following issue for our review.
I. Did the trial court abuse its discretion by conducting a
Wexler[, 431 A.2d at 877] analysis when deciding a
petition to expunge a temporary [PFA] order and by
denying the same petition based upon a Wexler factor
(lack of passage of time since its issuance)?
Z.L.V.H.’s Brief at 7.
We review the trial court’s decision to grant or deny expungement of
non-conviction records for an abuse of discretion or error of law. See
Commonwealth v. Wolfe, 749 A.2d 507, 509 (Pa. Super. 2000). At the
outset, we note the trial court, in its Rule 1925(a) opinion, conceded it erred
by conducting a Wexler analysis. Trial Court Opinion, 5/18/2020, at 2.
Thus, if this Court were to remand to the trial court, the trial court stated it
would grant Z.L.V.H.’s petition for expungement. Id. at 3.
By way of background,
The expungement continuum ranges from (a) illegal or void civil
commitments, acquittals in criminal cases, and PFA matters that
have not been proven and brought to final order [], where
expungement is proper as a matter of law, to (b) non-
conviction or arrest records, as in nol pros or [Accelerated
Rehabilitation Disposition], where expungement is a matter of
judicial decision (such as Wexler), and to (c) conviction
records, where there is no right of expungement except by
statutory authorization in limited circumstances.
Commonwealth v. Charnik, 921 A.2d 1214, 1220 (Pa. Super. 2007)
(emphasis in original). Our Supreme Court has held that “the Wexler
3Both Appellant and the trial court complied with the mandates of Pa.R.A.P.
1925.
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balancing is unnecessary when: (1) a PFA[] petition filed against a PFA[]
defendant has been dismissed by court order[]; or (2) the PFA[] proceedings
never evolve beyond the temporary order stage[.]” Carlacci v. Mazaleski,
798 A.2d 186, 191 (Pa. 2002).
In the instant case, L.J.R. filed for a PFA order against Z.L.V.H..
Thereafter, the PFA court entered a temporary PFA order. Upon L.J.R.’s
motion to withdraw her PFA petition, the PFA court ultimately vacated the
temporary PFA order. There is no dispute that a final PFA order was never
entered. Accordingly, the averments in L.J.R.’s PFA petition are allegations
of abuse, not facts proven by a preponderance of the evidence. See
Graham v. Flippen, 179 A.3d 85, 88 (Pa. Super. 2018) (holding Graham
was entitled to expungement because PFA records in cases initiated by
Graham’s paramour contained bald, unproven allegations of abuse, as only
temporary PFA orders were entered against Graham and the orders were
dismissed before a hearing was held). As such, Z.L.V.H. is entitled to
expungement as a matter of law.
For these reasons, we reverse the trial court’s order denying Z.L.V.H.’s
petition for expungement. We remand this case to the trial court to enter an
order expunging the temporary PFA order.
Order reversed. Case remanded with instructions. Jurisdiction
relinquished.
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*Judge Strassburger did not participate in the consideration or
decision of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/12/2021
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