White v. Urban, 394 EDA 2022

CourtSuperior Court of Pennsylvania
Writing for the CourtSTABILE, J.
PartiesANTHONY MARK WHITE v. MICHAEL URBAN Appellant
Docket Number394 EDA 2022,J-S27001-22
Decision Date22 November 2022

ANTHONY MARK WHITE
v.

MICHAEL URBAN Appellant

No. 394 EDA 2022

No. J-S27001-22

Superior Court of Pennsylvania

November 22, 2022


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered December 29, 2021 In the Court of Common Pleas of Bucks County Civil Division at No: 2021-61552

Joseph D. Seletyn, Esq.

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

MEMORANDUM

STABILE, J.

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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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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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
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