White, A. v. Urban, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANTHONY MARK WHITE : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MICHAEL URBAN :

:

Appellant : No. 394 EDA 2022

Appeal from the Order Entered December 29, 2021

In the Court of Common Pleas of Bucks County

Civil Division at No: 2021-61552

BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 22, 2022

Appellant, Michael Urban (“Michael”), appeals from the December 29,

2021 order entered in the Court of Common Pleas of Bucks County, prohibiting

Michael from having any contact with Appellee, Anthony Mark White

(“Anthony”). Michael argues that the trial court erred as a matter of law when

it determined that Anthony had standing to file a petition against Michael

under the Protection from Abuse (“PFA”) Act, 23 Pa.C.S.A. § 6101, et seq. We

agree with Michael that Anthony lacks standing because Michael and Anthony

are not “family or household members” as defined in Section 6102 of the Act.

Because the trial court erred when it found standing, we vacate the December

29, 2021 order.

The trial court summarized the procedural history of this case in its Rule

1925(a) opinion, explaining that Anthony filed a petition on August 30, 2021,

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seeking a PFA order against Michael. A temporary order was entered in

response. Michael filed a motion for reconsideration. The temporary order

was extended until December 29, 2021, when the court conducted a hearing.

At the conclusion of the hearing, the court denied Michael’s reconsideration

motion and entered a final order granting Anthony’s PFA petition for a period

of three-years.1 This timely appeal followed. Both Michael and the trial court

complied with Pa.R.A.P. 1925.

Michael asks us to consider one issue in this appeal:

Whether the trial court erred as a matter of law in finding that

[Anthony] had standing to file a petition under the [PFA] Act,

23 Pa.C.S.A. § 6101, et seq. as [Michael] and [Anthony] are not

“family or household members, sexual or intimate partners, or

persons who share biological parenthood.” 23 Pa.C.S.A. § 6102.

Michael’s Brief at 4.

Initially, we note that our standard of review “regarding an issue of

standing under the [PFA] Act is de novo and our scope of review is plenary.”

B.R.S. v. J.L., 236 A.3d 1167, 1168 (Pa. Super. 2020) (citing McCance v.

McCance, 908 A.2d. 905, 908 (Pa. Super. 2006)). In B.R.S., this Court

explained that

[t]he goal of the PFA Act is protection and prevention of further

abuse by removing the perpetrator of the abuse from the

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1 Relevant provisions of the order direct Michael not to “abuse, harass, stalk,

or threaten or attempt to use physical force” that would be expected to cause

bodily injury to Anthony or any other protected person. Order at ¶ 1. Further,

Michael is prohibited from stalking or harassing Traci Urban (“Traci”), who is

identified in the order as Anthony’s “Girlfriend.” Id. at ¶ 3. As will be

discussed herein, Traci is also Michael’s estranged wife.

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household and/or from the victim for a period of time. As for

individuals who may seek refuge within the confines of the Act,

the statute’s protective sphere encompasses “family or household

members.” In section 6102 of the Act, the term “family or

household members” is defined as,

Spouses or persons who have been spouses, persons living

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. at 1168-69 (cleaned up) (quoting McCance, 908 A.2d at 908).

The trial court summarized the testimony presented at the December

29, 2021 hearing as follows:2

During the hearing, Michael testified that Anthony is dating

[Michael’s] wife Traci. [Michael] explained that he, from day one,

has had an “open” relationship with Traci. He was aware that she

was having sex with other men, including Anthony. The petition

for protection against abuse order filed by Anthony checked off

the box listing Michael as a “current or former sexual or intimate

partner with Anthony.” To dispute this, Michael testified that he

is not currently having a sexual relationship with Anthony and has

not had an intimate relationship with him. Michael stated that he

has never been in the same room as Anthony other than when he

first saw him in the Prothonotary’s Office on January 6, 2021,

while Michael was filing a PFA against Traci and Traci was, at the

same time, filing a PFA against Michael.

Traci testified that Anthony is now her live-in boyfriend. Michael

is her soon-to-be ex-husband and they had been legally separated

for about one year at the time of the hearing. She met Anthony

at the pool room where she worked. She had known him for four

years and has been romantically involved with him almost two

years.

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2 While the trial court referred to the involved individuals by their full names,

including their respective roles in this appeal, we have taken the liberty of

referring to them by their first names, i.e., Michael, Anthony, and Traci.

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Traci explained that one of Michael’s sexual fetishes was to “watch

Traci be with other men and watch, listen, and participate on

occasion.” Because of this, when Traci discovered that Anthony

was interested in her, she told Michael. Michael approved,

requested, and encouraged Traci to have a sexual relationship

with Anthony so he could listen to them have sex. In fact, Michael

wanted to meet Anthony, and later introduced himself to Anthony

and shook his hand at Traci’s New Year’s Eve 2019 to 2020 work

party. Also, “Traci would be encouraged and asked by Michael to

go have sex with Anthony. And then Anthony would ejaculate into

her vagina, and she would go home and Michael would orally take

it out of her vagina.”

Anthony did not originally know that Traci was going to call

Michael on the phone and place him on speaker so he could listen

to them having sex, but later, did know and consent to it. In

addition, Michael and Anthony negotiated for time spent with

Traci. Once, while Traci was in bed with Anthony at his house,

Michael and Anthony discussed, over the phone, that Anthony

could have Traci, but Michael wanted her for Friday nights,

“whether it be sexual or dinner or whatever,” and insisted that

Anthony respect that request.

Traci did not know of any occasion where both men were

physically in the same room or house when she was having sex

with Anthony.

Traci and Anthony had become closer, started to exclude Michael

from their relationship, and Traci told Michael that she wanted to

leave him. Traci planned to separate from Michael in December

of 2020.

Trial Court Rule 1925(a) Opinion (“TCO”), 5/10/22, at 4-5 (references to notes

of testimony omitted).

The court noted that problems arose after Michael was removed from

the triangular relationship. “They now menace each other as they (at the

same time) seek PFAs against each other.” Id. at 6 (footnote omitted).

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The trial court explained that, after listening to the testimony, the court

“found that there was an ‘intimate’ relationship between [Michael, Anthony,

and Traci] because they were all aware of and consented to a triangle sexual

and intimate relationship. They openly, verbally shared [Traci] sexually and

the time they each spent with her.” Id. at 6. Quoting McCance, the court

agreed with Anthony that the PFA Act “is designed to promote peace and

tranquility of households, and among family members and intimate partners

who reside or have resided together.” Id. (quoting McCance, 908 A.3d at

907). The court also quoted this Court’s opinion in B.R.S. in which we

reiterated that

the persons who undoubtedly fit the Act’s definition of family or

household members—e.g., spouses, parents, children, relatives,

paramours, and persons who undertake romantic

relationships—typically share some significant degree of

domestic, familial and/or intimate interdependence. There

is often an obvious emotional bond. Frequently, these individuals

interface in very practical areas of private life—a mutual

residence, common family obligations and/or shared

involvement in the affairs of day-to-day living. . . . In sum,

the persons protected by the Act as a family or household

members have a connection rooted in blood, marriage, family-

standing, or a chosen romantic relationship.

Id. at 7 (emphasis added by trial court) (quoting B.R.S., 236 A.3d at 1169)

(in turn quoting Scott v. Shay, 928 A.2d 312, 315 (Pa. Super. 2007)).3

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3As discussed infra, this Court again quoted the language from B.R.S. and

Shay, as well as the federal law definition of “intimate partners,” in

Commonwealth v. Getkin, 251 A.3d 425 (Pa. Super. 2021). See n. 6.

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Interpreting the case law, the trial court “affirmed that the parties in

this case had a prior intimate relationship and/or affinity to one another

encircling romantic and family matters[.]” Id. The court repeated its

statement made at the conclusion of the December 29, 2021 hearing, noting:

[T]he facts that have been established—and they include that

there was a permission given by Michael for his wife and Anthony

to be engaged in sexual relationships and that there was

participation on the part of Michael even though it was on a

segmented and from a temporal standpoint—it was segmented in

time. But in terms of transactions and the relationship matter was

one that was a continuing single episode [sic].

As a result, there were sexual relationships as I find the testimony

of Traci as being credible. And, frankly, there was confirmation of

that credible testimony of wife by Michael when he admitted that

he gave permission for that sexual relationship to take place.

Therefore the relationships were sufficiently intimate for purposes

of activating the standing for bringing an action under the PFA Act.

And, therefore the court concludes that standing does exist. And

Anthony may proceed as a potential protected party under the

Act.

Id. at 7 (quoting Notes of Testimony, 12/29/21, at 46-47).4

As noted at the outset, our standard of review regarding the issue of

standing under the PFA Act is de novo and our scope of review is plenary.

B.R.S., 236 A.3d at 1168. To qualify for protection under the PFA Act,

Anthony must demonstrate that he is “family or household member” under

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4 Again, we have taken the liberty of using the first names of the individuals

involved. We note that after the court decided the issue of standing, the

hearing proceeded in order to determine whether the PFA should be granted.

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23 Pa.C.S.A. § 6102, i.e., “[s]pouses 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.” Clearly,

Michael and Anthony are not now, nor have they ever been, spouses, persons

living as spouses, parents, or children. Nor are they persons related by

consanguinity or affinity, or persons who share biological parenthood.5

Therefore, unless Michael and Anthony are “current or former sexual or

intimate partners,” as Anthony represented in his PFA petition, Anthony is not

entitled to protection under the PFA Act.

The record clearly reflects that Michael and Traci were spouses, and that

Anthony and Traci qualify as current sexual or intimate partners. However,

the issue here is the relationship between Michael and Anthony, and whether

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5 Although the trial court found, or at least suggested, Michael and Anthony

were related by affinity, see TCO, 5/10/22, at 7, we do not find affinity under

the facts here. Michael and Anthony are not “in-laws” or married to each

other’s in-laws, as was the case in B.R.S. In B.R.S., we concluded that the

petitioner had standing to seek a PFA order against his wife’s sister’s husband,

because a “person related by . . . affinity” includes all definitions of a brother-

in-law or sister-in-law. Id., 236 A.3d at 1169. See also Commonwealth v.

Walsh, 36 A.3d 613, 618 (Pa. Super. 2012) (explaining that “affinity,” while

not defined in the PFA Act, is defined in Webster’s American Dictionary, 14

(2nd College ed.2000) as, inter alia, “related by marriage or by ties other than

those of blood,” and that affinity existed between victim and appellant because

victim’s two half-siblings were natural children of appellant and victim’s

mother).

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Michael and Anthony were sexual or intimate partners so as to establish

standing under the PFA Act.

As Michael correctly notes, this Court acknowledged in Scott that the

Act does not define partners. Michael’s Brief at 8 (citing Scott, 928 A.2d at

315). Because “the term ‘partners’ is not free of all ambiguity, . . . we must

interpret the term in light of the legislators’ intent. As we have already made

clear, their intent was to prevent domestic violence and to promote peace and

safety within domestic, familial and/or romantic relationships.” Scott, 928

A.2d at 315.6

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6 Although in a context different from the case before us, in Commonwealth

v. Getkin, 251 A.3d 425 (Pa. Super. 2021), this Court discussed firearms

disqualifications applicable to persons who commit crimes of domestic violence

against an “intimate partner.” The Court noted that federal law defines

“intimate partner” as, “with respect to a person, the spouse of the person, a

former spouse of the person, an individual who is a parent of a child of the

person, and an individual who cohabitates or has cohabitated with the

person.” Id. at 430 (quoting 18 U.S.C. § 921(a)(32)). The Court in Getkin

further noted that while the PFA Act does not define the term, this Court had

explored the term as well as legislative intent with respect to the term in

Scott, and went on to quote the language from Scott that this Court adopted

in B.R.S., and which the trial court included in its opinion. Id.

Other jurisdictions similarly define “intimate partners,” including Kansas

(“‘Intimate partners or household members’ means persons who are or have

been in a dating relationship, persons who reside together or who have

formerly resided together or persons who have had a child in common.”

K.S.A. § 60-3012(b)); Nebraska (See State v. Gay, 18 Neb.App. 163, 166,

778 N.W.2d 494, 497 (2009) (“Section 28–323(7) defines an ‘intimate

partner’ as ‘a spouse; a former spouse; persons who have a child in common

whether or not they have been married or lived together at any time; and

persons who are or were involved in a dating relationship.’ Section 28–

323(7) goes on to define a ‘dating relationship’ as ‘frequent, intimate

(Footnote Continued Next Page)

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In this case, Anthony testified that Michael threatened to “fuck him up,”

and charged at him—in Michael’s driveway—with a hockey stick and with a

rake on separate occasions. Anthony claimed he felt threatened by Michael’s

actions and by his reputation for violent tendencies. N.T., 12/29/21, at 52-

59. However, as the Court recognized in Scott:

We must not lose sight of the fact that the Act was passed because

the criminal law was sometimes an inadequate mechanism for

dealing with violence that arose in the intimate environs of

domestic life. . . . [S]ubjecting Appellant to a PFA order would in

no way help to cultivate peace or safety in a household troubled

by familial violence because the parties to this case do not and did

not share a household or similar interaction. It is not within our

authority to expand the Act beyond the arena in which it was

intended to operate.

. . . By construing “partners” to mean those persons who mutually

choose to enter relationships, we give effect to the provisions of

the statute in a way that promotes its purpose of preventing

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associations primarily characterized by the expectation of affectional or sexual

involvement, but does not include a casual relationship or an ordinary

association between persons in a business or social context.’”); Washington

(“‘Intimate partners’ means: (a) Spouses or domestic partners; (b) former

spouses or former domestic partners; (c) persons who have a child in common

regardless of whether they have been married or have lived together at any

time; (d) adult persons presently or previously residing together who have or

have had a dating relationship; (e) persons 16 years of age or older who are

presently residing together or who have resided together in the past and who

have or have had a dating relationship; or (f) persons 16 years of age or older

with whom a person 16 years of age or older has or has had a dating

relationship.” Rev. Code. Wash. (ARCW) § 10.99.020(8)). While not binding

on us, we find these definitions from our sister states instructive and

consistent with the federal law definition employed by this Court in Getkin.

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violence among people with a domestic, familial or romantic bond,

past or present. More simply, our interpretation means that

persons who choose to have intimate or sexual relationships are

within the purview of domestic relations law.

Also relevant is the fact that the criminal law already affords

protection from harassment, stalking, assault and a multitude of

other crimes. The Legislature has not determined that the

criminal law is inadequate to deal with interactions between an

assailant and a victim who are not in a family setting. There is no

suggestion that police or prosecutors would be unable or unwilling

to enforce the criminal law between Appellant and Appellee if the

facts warranted its application.

Id., 928 A.2d at 315-16.

That same sentiment was reiterated in Evans v. Braun, 12 A.3d 395

(Pa. Super. 2010), where the Majority determined that a woman had standing

to seek a PFA order against a co-worker. In dissent, the Honorable John M.

Cleland observed:

Evans’ testimony established that she and Braun were co-workers

who had gone on two dates. She did not testify they were

particularly intimate, either sexually or emotionally. Under the

facts of this case, I do not agree Evans and Braun can be

considered “current or former sexual or intimate partners” as that

term is used either in the statute or discussed in our caselaw.

Their relationship simply did not entail the “significant degree of

domestic, familial and/or intimate interdependence” the Act is

intended to address. Scott, 928 A.2d at 315.

The majority further concludes the “criminal law proved to be an

ineffective avenue for Evans to seek protection from Braun” and,

therefore, “bolsters our conclusion that Evans had standing to

seek protection under the statute.” Majority Opinion at 400.

However, arguably it was not the criminal law that proved to be

ineffective. The criminal law “already affords protection from

harassment, stalking, assault and a multitude of other crimes.”

Scott, 923 A.2d at 316. If the police failed to recognize the

possibility Evans was the victim of criminal acts and afford her the

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protection of the Crimes Code, their failure does not bolster her

into an “intimate partner” as defined by the Legislature in the

Protection from Abuse Act.

As we noted in Scott, “the Act is concerned with persons who

have or who have had domestic, familial and/or romantic

relationships. It is a domestic relations statute, not a statute

governing persons without any such relations.” Id. at 314. I do

not believe the Legislature, given its stated intent, intended to

authorize a trial court to grant the expansive relief provided in the

Act based on a two-date relationship. That is the realm of the

criminal law.

Evans, 12 A.3d at 400 (Cleland, J. dissenting).

As in Scott, and as discerned by the dissent in Evans, the PFA Act is

not concerned with persons who do not have “domestic, familial and/or

romantic relationships.” Scott, 923 A.2d at 314. The Crimes Code provides

for protection of individuals without such relations. Whereas in Evans, the

police did not pursue a criminal investigation or charges at Evans’ urging, here

the testimony reflected that police did respond to calls regarding Michael’s

actions. See N.T., 12/29/21, at 74. And Michael testified that he had

contacted the police “close to 20 times” regarding Anthony’s behavior. Id. at

93. As was the situation in Scott, “[t]here is no suggestion that police or

prosecutors would be unable or unwilling to enforce the criminal law between

Appellant and Appellee if the facts warranted its application.” Scott, 912 A.2d

at 316.

While the relationship between the two men in the instant case has been

contentious, Michael and Anthony were not sexual or intimate partners, nor

were they in a domestic, familial, or romantic relationship. They were both

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involved in a relationship with a third person, Traci. Michael and Anthony were

parties to what could be most delicately described as a warped love triangle.

If we were to find that Anthony had standing under the PFA Act as a “family

or household member,” we would be expanding the definition of that term to

include any participant in a love triangle, even if there was no family or

household relationship between the individuals by whom and against whom

the PFA order was being sought. This is not a situation the PFA Act was

designed to address. There are criminal statutes available for such purposes.

As this Court observed in Scott, “The Legislature has passed criminal statutes

dealing with crimes and domestic statutes dealing with domestic relations.”

Scott, 928 A.2d at 316.

In his petition, Anthony sought protection against Michael as a “current

of former sexual or intimate partner.” Because Michael was not Anthony’s

current or former sexual or intimate partner, and because he did not otherwise

qualify as a family or household member, we find the trial court erred by

concluding that Anthony had standing under the PFA Act. Therefore, we

vacate the December 19, 2021 order.

Order vacated.7

Judge Sullivan joins the memorandum.

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7 We recognize that the order entered by the trial court also prohibited Michael

from stalking or harassing Traci, and that vacating the order erases that

prohibition. See n.1. However, there is no question that Traci has standing

to pursue a PFA against Michael should she elect to do so.

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Judge Nichols concurs in the results.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2022

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