Weir v. Weir

• Decision Date: 03 September 1993
• Citation: 631 A.2d 650,428 Pa.Super. 515
• Parties: Robin WEIR v. Danny WEIR, Appellant.
• Court: Pennsylvania Superior Court

Page 650

631 A.2d 650

428 Pa.Super. 515

Robin WEIR v. Danny WEIR, Appellant.

Superior Court of Pennsylvania.

Argued June 23, 1993.

Filed Sept. 3, 1993.

Gloria V. Brown, Altoona, for appellant.

Donald E. Speice, Public Defender, Hollidaysburg, for appellee.

Before OLSZEWSKI, HOFFMAN and BROSKY, JJ.

BROSKY, Judge.

This is an appeal from a protection from abuse order entered against appellant. The following issues are presented for our review: (1) whether this court can consider the merits of appellant's allegations of error despite his failure to file post-trial motions; (2) whether the trial court's failure to enter an adequate verdict excused appellant's failure to file post-trial motions; (3) whether trial counsel was ineffective in failing to file post-trial motions on appellant's behalf; (4) whether the trial court had subject matter jurisdiction over this action; (5) whether the evidence was sufficient to sustain the verdict; and (6) whether the trial court erred in permitting evidence of prior abuse to be introduced. For the reasons set forth below, we affirm.

We will briefly recount the relevant facts and history of this case before proceeding to consider the merits of appellant's claims. Appellant, Danny Weir, and appellee, Robin Weir, were married in 1976. In the late evening hours of September 7, 1992, the Weirs were driving along mountainous back roads in the vicinity of Altoona, Pennsylvania. Mr. Weir was operating a van and Mrs. Weir was a passenger therein. The parties, who had been experiencing marital difficulties, started to argue. According to appellee, her husband drove the vehicle at an excessive rate of speed despite her protests to slow down. Appellant drove behind a sign and began to decelerate at which point appellee jumped out of the vehicle and began to run away. Appellant pursued appellee in the vehicle and eventually trapped her between the van and the concrete portion of a bridge. Appellant repeatedly told appellee to return to the vehicle. Appellee finally complied with appellant's demands and got back into the vehicle. Appellant again began to drive at an excessive rate of speed.

Appellee and her children subsequently moved out of the marital residence and went to reside with appellee's brother. On September 14, 1992, appellee filed a pro se protection from abuse petition against appellant. In response, the lower court entered a temporary order directing appellant to refrain from abusing or threatening to abuse appellee and scheduled a hearing on the petition. A hearing on the petition was held on October 21, 1992. The trial court entered an order granting appellee's petition October 23, 1992. No post-trial motions were filed by either of the parties. Neither of the parties reduced the order to final judgment. Appellant thereafter instituted this appeal from the October 23rd order of court.

Although not addressed by either of the parties, we must first ascertain whether the order entered by the trial judge is properly appealable at this stage of the proceedings, since this determination necessarily affects our jurisdiction to entertain the issues raised. See Fried v. Fried, 509 Pa. 89, 91, 501 A.2d 211, 212 (1985); Flowers v. Flowers, 417 Pa.Super. 528, 530, 612 A.2d 1064, 1065 (1992). Questions relating to jurisdiction are not waived by the failure of the parties to raise them and may properly be raised by the court sua sponte. Fried v. Fried, 509 Pa. at 92, 501 A.2d at 212. In addressing this question, we must necessarily examine the practice and procedure to be followed in protection from abuse proceedings.

Protection from abuse actions are regulated by statute and the rules promulgated pursuant thereto. See generally, Protection From Abuse Act ("PFAA"), 23 Pa.C.S.A. § 6101-s 6117 and Pa.R.C.P., Rules 1901-1905, 42 Pa.C.S.A. Proceedings under the PFAA are to be conducted in accordance with applicable general rules. See 23 Pa.C.S.A. § 6117. The rules more specifically direct that the decision of the lower court shall be governed by Rule 1038(b) and (c) of the Pennsylvania Rules of Civil Procedure. Pa.R.C.P., Rule 1905(a), 42 Pa.C.S.A. Rule 1038 defines the practice and procedure to be followed in non-jury trials. Rule 1038(b) provides that the decision of the trial judge may consist only of general findings. Pa.R.C.P., Rule 1038(b), 42 Pa.C.S.A. This rule also permits the trial judge to include as part of the decision specific findings of fact and conclusions of law with appropriate discussion. See id. Rule 1038(c) allows the trial court to announce its decision either orally in open court or in a writing filed within seven (7) days after trial, unless the case is protracted or extraordinarily complex. Pa.R.C.P., Rule 1038(c), 42 Pa.C.S.A.

Post-trial practice in protection of abuse actions is governed by Rules 227.1-227.4. Pa.R.C.P., Rule 1905(b), 42 Pa.C.S.A. Pursuant to Rule 227.1, post-trial motions must be filed within ten (10) days after the filing of the decision in the case of a trial without jury. Pa.R.C.P., Rule 227.1(c)(2), 42 Pa.C.S.A. Following disposition of post-trial motions, or if no timely motion has been filed, the decision of the trial judge must then be entered as a final judgment, either by the trial court or upon praecipe of the parties. See Pa.R.C.P., Rules 227.1(a)(4) and 227.4(1)(b) and (2). See also Pa.R.A.P., Rule 301, 42 Pa.C.S.A. and Note thereto (discussing the reduction of an order to judgment as a prerequisite for appeal).

Application of the above provisions reveals that appellant has failed to comply with the procedural requisites by failing to have the trial court's decision entered as a final judgment. However, this defect does not affect the validity of the appeal. Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A. See also Melvin v. Melvin, 398 Pa.Super. 1, 13-14, 580 A.2d 811, 816 (1990) (where an appeal is improvidently taken prior to entry of final judgment, this court will ordinarily direct the appellant to praecipe for the entry of judgment and treat the notice of appeal as being filed on the date that judgment is entered); but see Schwartz v. Schwartz, 319 Pa.Super. 5, 6, 465 A.2d 1024, 1025 (1983) (quashing an appeal where the appellant failed to enter the order on the lower court docket). Moreover, our Supreme Court has indicated that in the interests of judicial economy, we may disregard a defect of this type and "regard as done that which ought to have been done." See McCormick v. Northeastern Bank of Pennsylvania, 522 Pa. 251, 254 n. 1, 561 A.2d 328, 330 n. 1 (1989) (court considered the merits of an appeal despite the parties' failure to reduce an order to judgment). We therefore conclude that appellant's institution of this appeal prior to entry of a final judgment does not deprive us of jurisdiction.

We must next ascertain whether appellant has preserved any issues for appellate review. With regard to this question, we note that appellant has presented a challenge to the subject matter jurisdiction of the lower court. A court's lack of subject matter jurisdiction is a non-waivable issue which may be raised by the parties at any stage of the proceedings and can be raised by the appellate courts sua sponte. See Fried v. Fried, supra; Andursky v. Andursky, 382 Pa.Super. 1, 3-4, 554 A.2d 571, 573 (1989) and Pa.R.C.P., Rule 1032(2), 42 Pa.C.S.A. Because lack of jurisdiction would render appellant's remaining allegations moot, we will evaluate this question first.

The crux of appellant's argument is that the trial court lacked jurisdiction to conduct a hearing because appellee's petition failed to set forth an allegation of abuse as defined by the PFAA. The essence of this challenge is that the trial court should have summarily dismissed appellee's petition for failure to set forth a prima facie allegation of abuse. We disagree with appellant's reasoning.

The PFAA defines abuse as follows:

"Abuse." 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, spousal sexual assault or involuntary deviate sexual intercourse with or without a deadly weapon.

(2) Placing by physical menace another in 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).

23 Pa.C.S.A. § 6102(a)(1)-(4).

Appellee's petition, which was filed pro se, consisted of a pre-printed form containing blank lines for the parties' names, addresses, marital status, a description of the incident, and pertinent information pertaining to the parties' children and financial status. See Petition for Protection Order and Leave to Proceed In Forma Pauperis, filed September 14, 1992. Paragraph 4 of the petition more specifically describes the abuse and appears as follows:

4. SINCE OR ABOUT Sept 7, 1992, RESPONDENT HAS ABUSED THE PETITIONER. THIS ABUSE CONSISTED OF THE FOLLOWING INCIDENTS:

The incident occurred on Rt 36 (Catfish Ridge) Dan said I'll show you your driving me crazy Then he started to drive real fast I jumped out of the van after I unhooked my seat belt without getting hurt, I started to run then he trapped me against the cement part of the bridge till I got back in the van. Then he took me threw back roads where I don't even know he tried cutting curves at a high rate of speed enough to scare me. Then Regina MacDonald a friend of his talked to me on Sat 12, 1992 at our pet shop she told me to leave him because he made the statement if he blacks out he couldn't say what he might do to me.

Id. at paragraph 4. ¹

Contrary to appellant's interpretation, appellee's petition clearly sets forth an allegation of...