Custer v. Cochran

933 A.2d 1050, 2007 Pa. Super. 290, 2007 Pa. Super. LEXIS 3111

• Court: Superior Court of Pennsylvania
• Decided: September 25, 2007
• Status: Published

Opinions

OPINION BY

TODD, J.:

¶ 1 Donald W. Cochran (“Cochran”) appeals the order entered against him pursuant to a petition brought under the Protection From Abuse Act (the “PFA Act” or the “Act”), 23 Pa.C.S.A. §§ 6101 et seq., by his sister, Carol A. Custer (“Custer”). We affirm.

¶ 2 The factual background of this case is as follows. Cochran and Custer are siblings. Both are employed by a family business, Cochran Farm Equipment, Inc., in which each has a 25% ownership interest. The remaining shares of the corporation are held by two other siblings who also each possess a 25% ownership interest. Custer and Cochran have their own families, do not live in close proximity to one another, do not socialize, and normally have no contact with one another outside of their workplace:

¶ 8 They have worked together in the family business for over 35 years. Custer is the office manager and serves as secretary-treasurer for the corporation. Cochran is the president of the corporation and Robert Cochran, the third sibling, is the vice-president. The fourth sibling, Darlene Beener, holds no office. Disputes have arisen among the family members concerning the manner in which Cochran runs the business. In this regard, Custer and Robert Cochran initiated civil litigation against Cochran seeking a buyout of their ownership interest or a dissolution of the corporation. Custer testified at the hearing in this case that, inter alia, the civil suit alleges that Cochran’s verbal and physical threats constitute corporate oppression. (N.T. Hearing, 4/7/05, at 16.)

II4 On November 12, 2004, Custer filed a PFA petition against Cochran based on a verbal and physical altercation between the parties on November 9, 2004. Based on testimony received from the parties at the PFA hearing on April 7, 2005, the trial court made the following factual findings:

On the morning of November 9, 2004, the parties traveled from their homes to the business premises, as usual. [Custer] had put her lunch 'in the refrigerator when [Cochran] arrived and began questioning [Custer], [Cochran] was complaining about [Custer’s] scheduling of a special shareholders’ meeting. [Cochran] referred to [Custer] and her lawyer in derogatory terms and complained about scheduling of the board meeting. [Cochran] began yelling at [Custer], complaining that the board meeting was unnecessary and a waste of time and money. [Custer] told [Cochran] that she was going to her office and that she did not want to discuss the subject. [Custer] then walked to her office. [Cochran] followed [Custer], and continued to yell at her as she walked down the hall.

[Custer] went into her office and closed the door. She turned the volume of the radio up in an attempt to avoid listening to [Cochran’s] ranting, and again told [him] she did not want to discuss the subject and not to come into her office. Despite the volume of the radio, [she] could still hear [him] yelling and screaming. [Cochran] was swearing at [Custer].

[Custer] yelled back at [Cochran] that she did not want him in her office and did not want to discuss the subject.

[Cochran] started opening the door to [Custer’s] office. [Custer] stood up against the door to block the door from opening. [Cochran] continued to attempt to push the door open and to force himself into [Custer’s] office, knocking [Custer] backwards, causing her to hit her leg and knocking a stool over. In the process, [Cochran’s] eyeglasses came off. [Cochran] began screaming about his eyeglasses. [Custer] picked the glasses up, at which time [Cochran] hit [her] arm. The glasses flew out of [Custer’s] hand. [Custer] believed that [Cochran] was trying to hurt her and that [Cochran] was in a rage.

(Trial Court Opinion, 5/27/05, at 4-5.)

¶ 5 The situation deteriorated further when Cochran told Custer to leave and, while swearing at her, began ransacking her office. Custer backed against a wall and Cochran began to throw the contents of the office on the floor and then out the door. Cochran also took Custer’s purse and threw it about 10 feet into the parts aisle, then emptied it onto the floor and kicked it. Cochran returned to Custer’s office, and she informed him that she intended to call 911 unless he left. When she finally did call 911, Cochran returned to his own office to await the police. Custer did not press charges when the police arrived, and after they left, the parties completed their normal workday. Custer came to work the following two days, without incident, and then on November 12, 2004, she filed the PFA petition at issue.

¶ 6 The trial court entered a temporary emergency PFA order that same day.¹ Cochran filed a motion to dismiss the PFA petition for lack of jurisdiction, alleging that the dispute between the parties stemmed from a business disagreement and had nothing to do with their sibling relationship. Citing this Court’s decision in Olivieri v. Olivieri, 451 Pa.Super. 50, 678 A.2d 393 (1996), wherein we held that the PFA Act was not “intended to resolve a dispute between [sibling] business partners who do not reside in the same household,” id. at 53, 678 A.2d at 394, Cochran asserted that the allegations supporting Custer’s petition were not within the ambit of the PFA Act. The trial court heard argument on Cochran’s motion and determined that an evidentiary hearing was necessary to resolve the parties’ claims.

¶ 7 Following the PFA hearing on April 7, 2005, the trial court entered a final PFA order, prohibiting Cochran from abusing, harassing, stalking, or threatening Custer and forbade him to enter her residence, for a period of six months.² Cochran filed this timely appeal, and a divided panel of this Court affirmed in a memorandum decision. Following the grant of Cochran’s petition for reargument en banc, the panel decision was withdrawn, and now this appeal is ripe for our en banc consideration.

¶ 8 On appeal, Cochran asks:

I. Did the trial court err when it held that the Protection from Abuse Act applied to a business dispute between brother and sister who do not reside in [the] same household and have no contact with each other except for interaction at their common workplace when such holding was directly against the controlling decision of Olivieri, [supra]?

II. Was the trial court’s finding that an act of “abuse” occurred as required under the Protection from Abuse Act supported by the evidence where [Custer] did not claim any substantial injury and there was no evidence that she feared that [Cochran] was going to cause her any physical or serious bodily harm?

(Appellant’s Brief on Reargument at 2.)³

¶ 9 As an initial matter, we note that, in a PFA action, we review the trial court’s legal conclusions for an error of law or an abuse of discretion. Lawrence v. Bordner, 907 A.2d 1109, 1112 (Pa.Super.2006). In Commonwealth v. Widmer, 560 Pa. 308, 322, 744 A.2d 745, 753 (2000), our Supreme Court defined “abuse of discretion” in the following way:

The term ‘discretion’ imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.

Id. at 322, 744 A.2d at 753 (quoting Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85 (1993)).

¶ 10 Cochran first argues that the trial court erred in issuing a PFA order because, he contends, the PFA Act does not cover siblings unless they reside in the same household. He relies principally on this Court’s decision in Olivieri, supra, to argue that feuding sibling business partners who do not live together fall outside the Act. For the reasons that follow, we reject his argument.⁴

¶ 11 The purpose of the PFA Act is to protect victims of domestic violence from those who perpetrate such abuse, with the primary goal of advance prevention of physical and sexual abuse. Lawrence, 907 A.2d at 1112. The Act defines “abuse” as follows:

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, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon.

(2) Placing another in reasonable 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, including such terms as defined in Chapter 63 (relating to child protective services).

(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses).

23 Pa.C.S.A. § 6102 (emphasis added). The phrase “family or household members” is further defined as “[sjpouses 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.” Id. (emphasis added).

¶ 12 Cochran does not dispute, nor could he, that he and Custer, as siblings, are related by consanguinity.⁵ He asserts, however, that the Act applies only to members of the same household, and that because Custer and Cochran have no domestic relationship, the Act does not cover them. While this claim was true under prior versions of the PFA Act, we find no support for the notion that a domestic relationship is required under the Act’s present language.

¶ 13 As originally enacted in 1976 and codified in Title 35 of Pennsylvania Statutes, the PFA Act limited relief to abuse between “family or household members who reside together.” 35 P.S. § 10182 (1977) (amended 1978, repealed 1990). Indeed, the full title of the original Act was “An Act relating to abuse of adults and children by a person who resides with them; and providing for remedies and procedures.” 35 P.S. § 10181 (1977) (amended 1978, repealed 1990), Historical Note. In 1978, the definition of abuse was expanded to “family or household members who reside together; or who formerly resided together and both parties continue to have legal access to the residence.” 35 P.S. § 10182 (1988) (repealed 1990); see generally Yankoskie v. Lenker, 363 Pa.Super. 448, 453, 526 A.2d 429, 432 (1987) (discussing early evolution of the Act).

¶ 14 In 1990, the Legislature again expanded the reach of the Act and removed the restriction that the abuser must reside in the same household with his or her victim; these modifications, following amendments not relevant herein, resulted in the present definition of abuse quoted above. See 23 Pa.C.S.A. § 6102. Thus, Cochran’s contention that the Act requires the parties to reside together finds no support in its present language, and is belied by the Act’s history. Indeed, while we have stated that the Act’s purpose is to protect victims of domestic violence, see, e.g., Lawrence, 907 A.2d at 1112; Fonner v. Fonner, 731 A.2d 160, 161 (Pa.Super.1999), the Legislature has nevertheless expanded the Act’s definitions to encompass relationships outside the strictly domestic sphere.

¶ 15 We must also reject Cochran’s reliance on this Court’s decision in Olivieri, supra. There, as in the instant case, the parties were siblings who were also joint owners of a business and had initiated civil litigation over the manner in which the business was being run. In that context, both parties sought PFA orders against the other. The trial court ultimately determined that it could not grant relief:

While it is true that Maria and Frank Olivieri are brother and sister, they are not family members that should be covered under the Protection From Abuse Act. The law is actually designed to protect those living under the same roof or who have access to the same residence from harming each other, and to preserve domestic tranquility. The legislature formulated the Protection From Abuse Act to focus upon the protection of families, not to settle business disputes. While Frank and Maria Olivieri are related by biological parenthood[⁶], in reality they are simply feuding business partners who are fighting about the way the business is run. The Olivieris have no connection with one another outside of the business. Through counsel, both parties admitted to the Court that they do not live in the same home, they do no socialize at all, and in fact cannot stand to be in the same room together.

Thus, Frank and Maria Olivieri have abandoned in every sense the notion of brotherhood and sisterhood. They are simply business partners who happen to have the same parents.

Olivieri, 451 Pa.Super. at 52, 678 A.2d at 394 (quoting trial court opinion). Specifically, the trial court made a factual finding that the Olivieris were seeking to use the PFA process as a mere procedural device to accelerate resolution of their civil dispute:

Maria and Frank Olivieri attempted to utilize the equity function of the Philadelphia Family Courts to bring about an early solution to their dispute. By filing the abuse petitions as vehicles to bring the fight immediately before the court, Maria and Frank Olivieri hoped to have the business dispute settled as the underlying cause of the alleged abuse.

Olivieri, 451 Pa.Super. at 53, 678 A.2d at 394 (quoting trial court opinion). The trial court thus concluded that it lacked “jurisdiction to hear the pure law questions surrounding the jointly owned business.” Id.

¶ 16 On appeal, this Court affirmed. Citing our decision in Cipolla v. Cipolla, 264 Pa.Super. 53, 398 A.2d 1053 (1979), for the proposition that the PFA Act is designed to protect against abuse between family members who reside together⁷, we agreed with the trial court that “neither the Family Division nor the Protection From Abuse Act are intended to resolve a dispute between business partners who do not reside in the same household, whether or not the partners happen to share biological parents,” emphasizing that the proper forum for resolution of their dispute was the civil courts. Olivieri, 451 Pa.Super. at 53, 678 A.2d at 394-95 (“[W]e will not allow the Protection From Abuse Act to serve as a weapon in purely business disputes.”).

¶ 17 Olivieri is in part distinguishable from the instant ease. In Olivieri there was a factual finding by the trial court that the parties sought PFA relief as a mere ruse, as a back door to resolution of their business dispute, that they were in fact “simply feuding business partners.” Olivieri, 451 Pa.Super. at 52, 678 A.2d at 394 (quoting trial court opinion).⁸ By contrast, herein, while testimony indicates that Custer would like the civil suit against Cochran to be resolved as soon as possible, she did not request the trial court intervene in that case in any manner. Furthermore, as we discuss below, she presented evidence supporting her claim of abuse. Thus, unlike Olivieri, there is no suggestion or finding by the trial court that Custer sought PFA protection for any reason other than physical protection.

¶ 18 Moreover, to the degree that this Court in Olivieri limited application of the PFA Act to parties that reside in the same household, it was in error. Indeed, our citation in Olivieri to Cipolla, supra, wherein this Court indicated that the Act imposed a common residency requirement, was misguided. In Cipolla, we interpreted the original version of the Act, codified in 35 P.S. § 10182, which required common residency; however, the PFA petitions at issue in Olivieri fell under the current version of the Act, which omits any such restrictions. Thus, to the degree that Olivieri suggests that the present version of the PFA Act imposes a common residency requirement, it is expressly overruled.

¶ 19 We conclude that the trial court correctly determined that Custer’s petition fell within the ambit of the Act. The plain language of the statute covers the relationship between Custer and Cochran. While Cochran argues that the purpose of the Act is to protect victims of domestic violence, a purpose this Court has reiterated, see, e.g., Lawrence, supra; Fonner, supra, and while there is no domestic component to the relationship between Custer and Cochran in the sense that they live together or even share a social life, the present language of the Act imposes no such domestic requirement. Regardless of what the perceived purpose of the Act may be, we may not disregard the plain language of the Act in pursuit of its purpose. See 1 Pa.C.S.A. § 1921(b) (“When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”); id § 1921(c) (factors such as the statute’s purpose may only be considered “[w]hen the words of the statute are not explicit”). As our Supreme Court has cautioned:

Under Section 1921(c), it is only when the words of a statute “are not explicit” that a court may resort to other considerations, such as the statute’s perceived “purpose,” in order to ascertain legislative intent. Id. Consistently with the [Statutory Construction] Act, this Court has repeatedly recognized that rules of construction, such as consideration of a statute’s perceived “object” or “purpose,” are to be resorted to only when there is an ambiguity.

In re Canvass of Absentee Ballots of November 4, 2003 General Election, 577 Pa. 231, 243, 843 A.2d 1223, 1230 (2004). Herein, the Act unambiguously covers the relationship between Custer and Cochran as siblings — they are related by consanguinity. As the statutory language is unambiguous, that ends our analysis.⁹, ¹⁰

¶ 20 We reject Cochran’s suggestion that, by so ruling, we put trial courts, or law enforcement, in the position of “emergency business arbiter, responsible for discerning in the first instance whether any particular business disagreement rises to the level of ‘domestic abuse’.” (Appellant’s Brief on Reargument at 13.) The PFA statute is clear about the conduct that falls within its ambit, and both the courts and, when an order is issued, law enforcement, are quite capable of enforcing its terms.

¶ 21 Next, Appellant argues that the trial court erred in granting the PFA order because the evidence was insufficient to support a finding of abuse under the Act. When faced with a sufficiency challenge under the PFA Act, we review the evidence in the light most favorable to the petitioner and, granting her the , benefit of all reasonable inferences, determine whether the evidence was sufficient to sustain the trial court’s conclusion by a preponderance of the evidence. Hood-O’Hara v. Wills, 873 A.2d 757, 760 (Pa.Super.2005). Furthermore, we must defer to the credibility determinations of the trial court. Id. Finally, we note that a PFA petitioner is not required to file a police report, nor is it necessary for her to introduce medical evidence of an injury. Id. at 761. The petitioner’s testimony is sufficient if it is believed by the trial court. Id.

¶ 22 The Act defines “abuse” as one of the five enumerated acts which we have quoted above. See 23 Pa.C.S.A. § 6102. Although in issuing the PFA order the trial court did not specify which of these acts it found, only two have possible application herein: “Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, inde-' cent assault or incest with or without a deadly weapon,” id. § 6102(1), or “Placing another in reasonable fear of imminent serious bodily injury,” id. § 6102(2). Because we find that the evidence was sufficient to support the PFA order under the first category, we need not address the second.

¶ 23 In light of all the evidence adduced at the hearing, we conclude that there was sufficient evidence to support a finding that Cochran attempted to cause and intentionally, or at least recklessly, caused bodily injury to Custer. At the time of the hearing, Custer was 65 years old and Cochran was 59. Also, Custer is approximately 5 feet and 3½ inches tall, weighing about 125 pounds, while Cochran is approximately 6 feet tall, and weighs about 240 pounds, almost twice Custer’s weight. Custer testified that on November 9, 2004, Cochran forced his way into her office, knocking her backwards, causing her to hit her leg and knock over a stool. When she attempted to return the eyeglasses that came off his head during their scuffle, he hit her arm which, until approximately two weeks prior, had been splinted following surgery. After the incident, Custer experienced pain in the arm for several days, especially when lifting her arm, and she resumed wearing the splint.

¶ 24 Although Cochran disputed Custer’s characterization of the seriousness of the altercation, (N.T. Trial, 4/7/05, at 112-116), the trial court specifically found Custer’s description of the incident to be more accurate and credible than Cochran’s version, (Trial Court Opinion, 5/27/05, at 7). In part, the trial court based this conclusion on the photographic exhibits presented during the hearing. (Id.) Despite Cochran’s claims that the events at issue are standard tactics in a business dispute, we agree with the trial court that Cochran’s behavior went far beyond that occurring even in a heated business dispute. As we find the evidence supports the trial court’s factual determinations, we must accept them.

¶25 Furthermore, the incident on November 9, 2004, was not the first instance of violence between these parties.¹¹ Cochran slapped Custer on several different occasions. In October of 2002, Cochran slapped Custer and threw a book at her, to which she responded by slapping him back. On that occasion, Custer was forced to climb on top of a parts counter to escape from Cochran.

¶ 26 The trial court specifically found that Custer “is afraid of [Cochran] and fears the occurrence of further aggressive and physical contact by [him].” (Trial Court Opinion, 5/27/05, at 7.) In light of the evidence presented at the hearing, we reject Cochran’s argument that there was insufficient evidence to support the trial court’s order.

¶27 For all the foregoing reasons, we affirm the order of the trial court.

¶ 28 Order AFFIRMED.

¶ 29 Judges LALLY-GREEN, BENDER, BOWES, GANTMAN, and PANEL-LA join in this majority decision, and Judges ORIE MELVIN and KLEIN concur in the result.

¶ 30 FORD ELLIOTT, P.J. files a Concurring Opinion which is joined by Judges ORIE MELVIN, KLEIN, BENDER, BOWES, and PANELLA.

1 . The temporary order prohibited Cochran from abusing, harassing, stalking, or threatening Custer, and precluded contact except to the extent required for the conduct of their business. (Temporary Protection From Abuse Order, 11/12/04.)

2 . The PFA order expired on October 7, 2005.

3 . Although the order on appeal expired in 2005, we will not dismiss this appeal as moot as it raises important public policy questions which may otherwise escape review, an exception to the mootness doctrine. See Snyder v. Snyder, 427 Pa.Super. 494, 500 n. 1, 629 A.2d 977, 980 n. 1 (1993) (noting that "Protection From Abuse Act Orders are usually temporary, and it is seldom that we have the opportunity to review one before it expires.”); Shandra v. Williams, 819 A.2d 87, 90 (Pa.Super.2003) (same, quoting Snyder). Herein, we find the question of whether sibling business partners fall within the ambit of the PFA Act to be sufficiently important to warrant review. See Snyder, 427 Pa.Super. at 500 n. 1, 629 A.2d at 980 n. 1 (finding question of how narrowly a trial court must construe a PFA petition triggers public policy exception to mootness doctrine).

4 . We briefly address Cochran's contention that this issue is one of jurisdiction. Cochran asserts that because, as he argues, the Act applies only to siblings who have a domestic relationship, the trial court was without jurisdiction to hear the petition. (See Appellant's Brief on Reargument at 8.) Undoubtedly, the trial court, sitting in the Family Division of the Court of Common Pleas, had subject matter jurisdiction to entertain petitions under the PFA Act. See 23 Pa.C.S.A. § 6103 (“The court shall have jurisdiction over all proceedings under [the PFA Act].”) However, the power of the Court to act — that is, its ability to effect a certain result' — is a different matter. See Commonwealth v. Mockaitis, 575 Pa. 5, 17, 834 A.2d 488, 495 (2003) (defining the distinction between a court’s jurisdiction, which relates "solely to the competency of the particular court" to address the general class of controversies and a court’s power to act which is "the ability of a decision-making body to order or effect a certain result” (internal quotation marks omitted)). Whether certain parties fall within the relationships covered by the PFA Act affects only the court’s ability to grant relief, not its jurisdiction under the Act.

5 . The parties herein and the trial court presumed that siblings fell within the PFA Act's ambit as "persons who share biological parenthood.” We find, however, that siblings unambiguously are “persons related by consanguinity,” and thus fall under the Act on that basis. Accordingly, we do not address the meaning of the phrase "persons who share biological parenthood” which arguably pertains to persons who are related by virtue of being the biological parents of a child — that is, sharing the status of being parents — and not persons who are siblings.

6 . While in Olivieri the trial court and this Court indicated that siblings fell within the Act’s definition of abuse as "persons who share biological parenthood,” as we have noted, we find that siblings unambiguously fall under the Act as "persons related by consanguinity.” See supra note 5.

7 . As we discuss below, this holding is no longer valid under the present language of the PFA Act.

8 . In the published opinion of the lower court, the court indicated that it additionally determined that the parties "were not interested in Final Protection Orders against one another, but in ensuring that the other would not gain the upper hand in the business,” and that the parties had failed to prove their allegations of abuse. Olivieri v. Olivieri, 32 Phila. Co. Rptr. 460, 465 (Pa. Common Pleas 1995).

9 . By contrast, in McCance v. McCance, 908 A.2d 905, 908 (Pa.Super.2006), where the petitioner was married to the respondent’s brother, we looked to the purposes and goals of the Act in order to determine that the relationship fell within the Act's use of the term "affinity” because that term was undefined.

10 . Although, given our analysis, we do not rely on its finding, we note that the trial court additionally found that the altercation between Custer and Cochran was fueled by the sort of extreme emotions which generally are evoked only by a family relationship. (Trial Court Opinion, 5/27/05, at 10 ("[T]he abuse occurred at the workplace, [but] it is the family relationship which motivated the continuing harassment of [Custer] by [Cochran].”); id. at 12 (It was "the sibling rivalry which formed the basis for the complained of conduct.”).)

11 . It is proper for a trial court to admit evidence of prior abusive acts not raised in the PFA petition. Raker v. Raker, 847 A.2d 720, 726 (Pa.Super.2004). Because of the PFA Act’s protective goals, some flexibility is allowed in the admission of evidence relating to past acts of abuse: "Past abusive conduct on the [defendant's] part [is] a crucial inquiry necessary for entry of a proper order.” Id. (internal quotation marks omitted).