Monday, April 16, 2007

PFA - withdrawal - expungement

Commonwealth v. Charnik - Superior Court - April 3, 2007

This case involves a PFA defendant's request for expungement of a) two indirect criminal contempt convictions and b) the underlying PFA order itself. The trial court and Superior Court denied both requests.

Plaintiff got a final PFA order following a contested hearing. Later, Defendant was charged with and found guilty of two (2) instances of indirect criminal contempt, for violating the final PFA order. Plaintiff later filed a petition to withdraw the PFA order, seven months after it had been entered. The trial court granted the petition. Defendant then moved to expunge both the PFA record and the record of his contempt convictions. The trial court denied both requests and the Superior Court affirmed.

conviction records - The Superior Court rejected the request to expunge the contempt convictions, stating that the "Pennsylvania legislature has strictly regulated expungement of records of convicted persons. Conviction records may be expunged only where: 1) the subject of the information reaches the age of seventy and has been free from arrest or prosecution for ten years; or 2) where the individual has been dead for three years. Criminal History Record Information Act, 18 Pa. C.S. sec. 9122(b)." (emphasis in original)

non-conviction records -
The Superior Court termed the issue of the expungement of the underlying PFA "more complicated."

It held (in n. 3) that the trial did not have jurisdiction to set aside the final PFA order seven months after it had entered it, since there had been no appeal or reconsideration of that order. Query: does this mean that a PFA plaintiff does not have the right to withdraw her/his case? See, e.g., 23 Pa. C.S. 6105(e)(2) ("Vacated or expired orders shall be purged from the registry.")

In any event , the court went on to discuss the expungement issue in detail, distinguishing between a case where a final PFA order is entered after a hearing and a case which is discontinued before the entry of a final order, e.g., where it is withdrawn after the entry of a temporary order, without any hearing and before a plaintiff has met her/his burden of proof. "Thus, when a PFA petition...has been dismissed by court order [when neither party appears at the final hearing] or the PFA proceedings never evolve beyond the temporary order stage..., expungement is proper as a matter of law" since the PFA process was "not completed" and therefore lacked the "safeguards of due process."

The court said that expungement was not proper in other circumstances and held that the decision in Carlacci v. Mazaleski, 798 A.2d 186 (Pa. 2002), should be read as "expressly limiting the remedy of expungement of PFA records to those cases facts were brought forth to substantiate a finding of abuse and no final order was entered...."

In the case at bar, the request for expungement was rejected, because the final order was entered after a contested hearing at which "facts were brought forth proving the allegations of abuse by a fair preponderance of the evidence, and [the defendant] has not appealed that determination...."

Query: would the have reached the same result where the final order was entered by agreement, without any admission?