Stamus v. Dutcavich

DISSENTING OPINION BY

BOWES, J.:

¶ 1 As Appellant failed to object to the dismissal of the PFA order, her challenge to the propriety of that ruling is waived and should not be addressed by this Court. Thus, I respectfully dissent.

¶ 2 At the September 21, 2006 hearing, Appellee’s counsel openly admitted that Appellee had violated the PFA order by taking his children target shooting but asserted that the infraction was de minimis because Appellee merely wanted to bond with the children, and he did not use the rifle to threaten or intimidate Appellant. See N.T. Hearing, 9/21/06, at 2-3. Appellant’s counsel agreed that the violation was minor and then shifted the focus of the proceedings to an issue that was not raised in the police complaint. Specifically, Appellant’s counsel stated that her client was “actually contemplating filing a petition to extend this [PFA] Order ... because of actions that [Appellee] has taken regarding multiple voice messages and phone calls to [Appellant].” Id. at 3. Appellee’s counsel responded that it would be unjust to penalize Appellee for telephoning Appellant because Appellant initiated physical contact with Appellee and telephoned him on multiple occasions after she obtained the PFA order. The following excerpt from that discussion is relevant herein:

APPELLEE’S COUNSEL:

[T]his is a two-way street. [Appellant] is calling [Appellee] all the time. We also have the same messages within the week or so [of the target shooting *1104incident], [Appellant] showed up at the house. Asked [Appellee], can I come in; can I get this; can I get that, which he permitted her to do. She went to the extent of taking the drapes and curtains off of the windows. So if she’s that afraid [of Appellee], my question is, what’s she doing down at the marital residence that he’s granted exclusive possession of and taking things out of the house?
THE COURT:
See. We might be better off to just dissolve the Protection from Abuse Order and go from the day one-this day forward.
APPELLEE’S COUNSEL:
[The parties] are in the middle of a custody matter with this Court.... So [Appellee is] wholeheartedly behind the Court’s suggestion that this PFA Order be dissolved. [Appellant] lives in State College, and [Appellee] lives [in Lock Haven]. It’s not like they’re even going to run into each other....
APPELLANT’S COUNSEL:
Your Honor, if I may, my position on behalf of my client is that the communication that my client has instituted between herself and [Appellee], I would note for this Court that this is not a mutual PFA situation. There is no PFA against my client. I’ve instructed my client that she cannot excuse the Court Order requiring [Appellee] to have no contact with her.
THE COURT:
But when she contacts him, she’s inviting contact. She’s inviting a violation.
APPELLANT’S COUNSEL:
She certainly didn’t invite him to go pick up his guns.
THE COURT:
I understand that. But why, then, is she contacting him?
APPELLANT’S COUNSEL:
For the best interest of the children.
THE COURT:
The Order is that the underlying PFA is hereby dismissed. That’s the Order.
APPELLEE’S COUNSEL:
Thank you, Your Honor.

Id. at 4-7.

¶ 3 The record establishes that Appellant’s counsel had several opportunities to argue that the PFA order, in question could not be dismissed absent a formal written request, but she failed to lodge a single objection to the procedural irregularity during the September 21, 2006 hearing. Accordingly, I believe we are constrained to find this issue waived under Kelley v. Mueller, 590 Pa. 91, 912 A.2d 202 (2006).

¶ 4 In Kelley, a panel of this Court held that trial court judges had authority under the PFA to order police to search residences for weapons and that such orders did not violate the Fourth Amendment to the United States Constitution or Article 1 § 8 of the Pennsylvania Constitution. Our Supreme Court granted review and reversed, observing that the search-and-seizure issue was waived under Pa.R.A.P. 302(a) because it “was not properly challenged in the common pleas court....” Id. at 95, 912 A.2d at 204.

¶ 5 In the instant case, the trial court noted that Appellant failed to object to the dismissal of the PFA order and therefore concluded that she was precluded from challenging the court’s ruling. See Trial Court Opinion, 11/3/06, at 2. In light of *1105our Supreme Court’s pronouncement in Kelley, I regretfully believe it is improper for the majority to address this issue on the merits.7 As I would find the issue to be waived under Rule 302(a), I must reluctantly dissent.

. If it was procedurally proper to reach this issue, I would endorse the position taken by the majority and join in the disposition recommended in its opinion.