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Home My WebLink About2019-11977 DEREK ALLEN DELANCEY, : THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : No. 2019-11977 CIVIL TERM : LENELLE ELIZABETH DELANCEY, : CIVIL ACTION-LAW Defendant : PROTECTION FROM ABUSE ORDER OF COURT AND OPINION SMITH, J., January 27, 2020 FACTS On November 21, 2019, Plaintiff, Derek A. Delancey, filed for a Temporary Protection 1 from Abuse Order pursuant to the “Act.” The same day, after the required ex parte hearing, the 2 Honorable J. Wesley Oler, Jr., granted the Temporary Protection from Abuse Order. Subsequently, on November 27, both parties entered into an agreement which was titled “TEMP 3 PROTECTION FROM ABUSE ORDER.” On December 17, 2019, the Defendant, Lenelle E. Delancy, filed a “Motion for Reconsideration of Protection from Abuse Order”, averring, among other things, the agreement 4 was entered into based upon mistaken assertions made by Plaintiff’s Counsel. On December 18, 5 2019, the Honorable Jessica E. Brewbaker issued a Rule to Show Cause on the Plaintiff, to which, on January 7, 2020, he filed an Answer and New Matter, alleging the Court no longer had jurisdiction to vacate/reconsider the matter as time had run pursuant to Pa.R.C.P. No. 1901.8, and the holding of Commonwealth v. Charnik, 921 A.2d 1214 (Pa. Super. 2007). On January 9, 6 2020, the Honorable Jessica E. Brewbaker issued an Order, stating: 1 23 Pa.C.S.A. §§ 6101-6122, known as the “Protection From Abuse Act.” 2 See Temporary Protection from Abuse Order, Delancey v. Delancey, No. 2019-11977 (November 21, 2019). 3 See Id. The word “FINAL” is scratched out on top and replaced with the word “Temp”, but the automatically generated title along the top edge still reads, “FINAL ORDER – PROTECTION FROM ABUSE SYSTEM.” 4 See Motion for Reconsideration of Protection from Abuse Order, Delancey, No. 2019-11977 (December 17, 2019). Neither Defendant’s Counsel nor the Court accuses Plaintiff’s Counsel of deliberately misrepresenting anything. 5 See Order, Delancey, No. 2019-11977 (December 18, 2019). 6 See Order, Delancey, No. 2019-11977 (January 9, 2020). Page 1 of 4 th AND NOW, this 9 day of January, 2020, IT IS HEREBY ORDERED, that Defendant, Lenelle Elizabeth Delancey’s Motion for Reconsideration of Protection from Abuse Order is GRANTED. nd A Hearing is scheduled for the 22 day of January, 2020, in Courtroom #6 of the Cumberland County Courthouse, Carlisle, Pennsylvania at 9:30 a.m. 7 Oral argument was before this Court on January 22, 2020. Counsel for Defendant interpreted the January 9 Order to mean the motion itself was granted and the hearing was on the underlying merits of the actual Protection from Abuse Order. Counsel for the Plaintiff 8 interpreted the Order to mean a hearing was granted on Plaintiff’s motion. Regardless, Plaintiff posited the “agreed upon temporary protection from abuse order” constitutes a final order for appeal and reconsideration purposes, and since the Court did not act upon it within the required 30 days, it is without jurisdiction. 9 One thing on which the parties agreed, or at least Counsel for Plaintiff admits, is that Counsel for Plaintiff mistakenly asserted to Defendant’s Counsel that based upon past practice in other counties, the parties could negotiate the firearms provision and allow Defendant to retain 10 her firearm for work purposes. Defendant’s counsel then adversely relied upon that assertion in counseling her client to enter into a negotiated P.F.A. Defendant’s Counsel also admits, however, that the defendant can still retain employment at her current salary. Further, neither counsel undertook independent investigation in either making the assertion or relying upon it. DISCUSSION The Court is constrained to agree with Plaintiff in that there is no such thing as an “agreed upon Temporary Protection from Abuse Order.” Regardless of what the parties deem to call it, there are two types of order under the Act: (1) a temporary order pursuant to §6107, and (2) a protection order or approved consent agreement, pursuant to §6108. Because this was an 11 approved order by the Honorable J. Wesley Oler, Jr., it acted in conformity with §6108 and thus is deemed final even though the top of the actual Order has the handwritten notation “Temp.” It can also further be deemed “final” as it disposes of all claims in accordance with 12 Pa.R.A.P. 341. 7 A contemporaneous record was made of the proceedings, which was not transcribed. 8 That is, a hearing on whether to “reopen” the P.F.A. and not on the P.F.A. itself. 9 Plaintiff’s Counsel also made certain admissions in his answer. See Plaintiff’s Response to Defendant’s Motion for Reconsideration, Delancey, No. 2019-11977, ¶¶ 6, 14. 10 Defendant is a Correctional Officer at the Cumberland County Prison. 11 See Temp Protection from Abuse Order – Amended Order, Delancey, No. 2019-11977 (November 27, 2019). 12 See also Miller on Behalf of Walker v. Walker, 665 A.2d 1252, 1254 (Pa. Super. 1995). Page 2 of 4 The Court also notes however, the phrase “Entered pursuant to the consent of Plaintiff and Defendant, without prejudice:” appears above both parties’ signatures. This phrase does not appear in the form petition delineated by Pa.R.C.P. No. 1905(e). Presumably, this added language refers to earlier language in the agreement that the consent was “entered by agreement 13 without admission.” That is, Defendant made no admissions and thus cannot be prejudiced by them in subsequent proceedings as there was no judicial finding of fact. The Court does not interpret the “without prejudice” language to mean that either party can move to modify the P.F.A. because that language would be superfluous in that either party can still move to modify the P.F.A. at any time pursuant to Pa.R.C.P. No. 1901.8, to include modifying it out of existence by modifying the expiration date. The Court is therefore bound by §6117 of the Act which states that unless otherwise indicated, proceedings under the chapter follow all applicable general rules. Aggrieved parties must either file an appeal or motion to reconsider within 30 days, and the motion itself must be 14,15 acted upon within those 30 days. Though the Defendant did file within the required 30 days, 16 the Court did not “act upon it” as Rules to Show Cause do not toll the time period. Therefore, Defendant’s motion must be denied. ORDER OF COURT th AND NOW this 27 day of January, 2020, upon consideration of Defendant’s Motion for Reconsideration of Protection from Abuse Order and following oral argument on the matter, it is HEREBY ORDERED AND DIRECTED that Defendant’s Motion for Reconsideration of Protection from Abuse Order is DENIED. The Consent Agreement, dated November 27, 2019 and approved by the Honorable J. Wesley Oler, Jr., will remain in full force and effect. BY THE COURT, _________________________ MATTHEW P. SMITH, J. 13 See also Plaintiff’s Response to Defendant’s Motion for Reconsideration, Delancey, No. 2019-11977, ¶ 7. 14 See Pa.R.C.P. No. 1930.2, Pa.R.A.P. 1701, and Pa.R.A.P. 903. 15 Commonwealth v. Charnik, 921 A.2d 1214, 1217 (Pa. Super. 2007). (“Once a final order or judgment is entered, an appeal must be filed within 30 days, or the trial court must expressly grant reconsideration within 30 days. If either of these two events does not occur, the judgment is final.”) 16 Valentine v. Wroten, 580 A.2d. 757, 758 (Pa. Super. 1990). (“The fact that the trial court established a briefing schedule, hearing date and issuing a rule to show cause did not amount to an agreement to reconsider. Rule \[Pa.R.A.P.\] 1701 is very clear. ”) Page 3 of 4 Joseph A. Donegan, Esq. 401 E. Louther Street, Suite 103 Carlisle, PA 17013 Veronica N. Range, Esq. 2320 N. Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 Page 4 of 4