Gabel v. Gabel

26 Pa. D. & C.4th 83, 1994 Pa. Dist. & Cnty. Dec. LEXIS 73
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedJuly 18, 1994
Docketno. 94-08206
StatusPublished

This text of 26 Pa. D. & C.4th 83 (Gabel v. Gabel) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gabel v. Gabel, 26 Pa. D. & C.4th 83, 1994 Pa. Dist. & Cnty. Dec. LEXIS 73 (Pa. Super. Ct. 1994).

Opinion

CARPENTER, J,

PREFACE

On the battlefields of domestic warfare, children are not only the casualties of parental combat, but they are increasingly becoming a pawn in the game of divorce, being used by one parent to spite the other. As the parents become entrenched in their positions, children may find themselves inno-man’s-land. These feelings of uncertainty and estrangement tend to compel children to ally themselves with one of their parents, a parent with whom the other parent is often at odds. One of the unfortunate consequences of a situation such as this is the ensuing hostility created between a parent and child. Similar to what transpired in the instant case, this hostility may grow to potentially harmful levels in the absence of the employment of common sense on the part of a parent. When the parent refuses to participate in family counseling, as did the mother in this case, the likelihood that such a situation will culminate in violence increases. The resulting emotional harm may be difficult to measure; however, as evidenced by this case, the potential for physical and emotional abuse is unmistakable. The Protection from Abuse Act is a legislative attempt to afford protection to individuals, including children, against harm caused by the combatants of domestic warfare in the course of their struggles.

Here, this court was confronted with the issue of whether or not the PEA Act was intended to protect a daughter who, after allying herself with her father in the midst [85]*85of a family breakup, provoked her mother to engage in conduct, and to utter words, which proved to be harmful to the daughter. This court concluded that the daughter was entitled to be protected under the PFA Act. Also, this court found that because the mother was an adult, and presumably wiser and more mature, she should have exercised restraint in her actions and words so as to conduct herself in a more appropriate manner. This court found that the mother’s actions were neither justified nor disciplinary in nature and concluded that she had abused her daughter as defined by 23 Pa.C.S. §6102(a). Ultimately, this court determined that the mother should be excluded from the marital residence thereby preventing any further skirmishes between the mother and daughter. Accordingly, this court ordered a “cease-fire” for a period of six months pursuant to 23 Pa.C.S. §6108.

FACTS

Michelle H. Gabel is the 14 year old daughter of Dana G. Gabel and Sandra L. Gabel, “appellant,” parents in the process of obtaining a divorce. Mr. Gabel, Michelle, and appellant, were all living in the same East Greenville home when the disputes relevant to this case took place.

On April 28, 1994, Michelle splashed a small quantity of a liquid substance that she was drinking on appellant. Appellant responded by forcefully grabbing her daughter, forcing Michelle onto her back then onto a sofa, and proceeded to shake her violently while screaming at her. (N.T. p. 11, May 12, 1994.) Fearing additional contact from her mother, Michelle yelled for her father and exited the house. Id.

[86]*86On May 1, 1994, Michelle went into the bathroom of her home to question her mother about the location of certain family photographs. After not receiving an answer satisfactory to her, Michelle persisted with her inquiry and a verbal altercation ensued. At some point during this argument, Michelle had positioned herself in such a way so as to hinder appellant’s ability to leave the bathroom. In an attempt to move Michelle out of her way and to exit the bathroom, appellant pushed Michelle up against the closed bathroom door. Appellant, still attempting to move Michelle, began to forcibly push and shove her daughter, and, at one point, struck Michelle in the ribs with her knee. (N.T. p. 5, May 12, 1994.) As a result of appellant’s physical contact, Michelle sustained the following injuries: black and blue marks on her left and right forearms, on her right lower buttock, and on one of her biceps, and bruises on her rib cage and on one of her hips. (N.T. pp. 5-8, May 12, 1994.) Initially, these injuries made respiration painful for Michelle, and as a result of the altercation she sought medical attention. (N.T. p. 5, May 12,1994.) Additionally, she became fearful of further abusiveness towards her by appellant. (N.T. p. 14, May 12, 1994.) Michelle’s fear of appellant was increased by appellant’s refusal to participate in family counseling. (N.T. pp. 14-15, May 12, 1994.)

On May 3,1994, Mr. Gabel filed a petition for protection from abuse on behalf of his daughter. A temporary order for protection from abuse was signed by the Honorable Albert R. Subers on the same day. Pursuant to a hearing held by this court on May 12, a final protection from abuse order was entered enjoining appellant from living [87]*87at, entering, or loitering about the marital residence. Appellant subsequently filed post-trial motions. So that this court could properly rule on these motions, we ordered an excerpt of the notes of testimony from the May 12 hearing to be transcribed; namely, the testimony of Michelle Gabel.

This court received a notice of appeal from the Superior Court on or about June 17, 1994. Appellant, however, did not serve a copy of their notice of appeal on this court, nor did she order the transcription of the remaining notes of testimony for the hearing held on May 12, 1994.

DISCUSSION

As previously stated, the instant appeal centers around this court’s finding that appellant abused her daughter within the meaning of the PFA Act. This court, therefore, finds it relevant to discuss the standard of review regarding protection of abuse cases. The standard of review on appeal for protection from abuse cases is clearly articulated by the Superior Court in Snyder v. Snyder 427 Pa. Super 494, 629 A.2d 977 (1993):

“In considering the sufficiency of the evidence to sustain the verdict, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences, and determine only whether the evidence introduced at trial was sufficient to sustain the verdict.” Id. at 505, 629 A.2d at 982 (citing Curran v. Stradley, Ronon, Stevens & Young, 361 Pa. Super. 17, 24, 521 A.2d 451, 454 (1987)); see also, Taylor v. Celotex Corp., 393 Pa. Super. 566, 573, 574 A.2d 1084, 1088 (1990).

[88]*88Also, PFA petitioners are not required to establish the occurrence of abuse beyond a reasonable doubt, rather, they need only to prove the allegation of abuse by a preponderance of the evidence. 23 Pa.C.S. §6107(a); Snyder v. Snyder, supra at 504-05, 629 A.2d at 982. The facts of this case are essentially undisputed, and this court found that Mr. Gabel and Michelle established the requisite burden of proving that abuse had occurred.

In her concise statement of matters complained of, appellant contends that no abuse has occurred. The PFA Act defines abuse as follows:

“Section 6102. Definitions
“(a) General rule....
“ ‘Abuse.’ The occurrence of one or more of the following acts between family or household members [ ]:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Snyder v. Snyder
629 A.2d 977 (Superior Court of Pennsylvania, 1993)
Curran v. Stradley, Ronon, Stevens & Young
521 A.2d 451 (Supreme Court of Pennsylvania, 1987)
Taylor v. Celotex Corp.
574 A.2d 1084 (Supreme Court of Pennsylvania, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
26 Pa. D. & C.4th 83, 1994 Pa. Dist. & Cnty. Dec. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gabel-v-gabel-pactcomplmontgo-1994.