Expungement of PFA Records an Important but Often Overlooked Tool

May 6, 2016Articles The Legal Intelligencer

The expungement of criminal records in Pennsylvania is a well-established procedure. The process has taken its shape through criminal cases and codified in statute in the criminal code and juvenile act. Due to the absence of statutory guidance, however, it is easy to overlook the accessibility of expungement for cases filed under the Protection from Abuse Act (PFAA).

The PFAA does not provide any mechanism for expunging records and, in fact, establishes an additional layer of reporting through the creation of a statewide registry for Protection From Abuse (PFA) orders. This registry is designed to be a complete and systematic record and index of all valid temporary and final court orders of protection, court-approved consent agreements, and registered foreign protection orders. It is not easily accessible to the public, but it exists as a searchable database, not unlike PFA dockets that may be accessible to varying degrees based on the practices of a particular county.

A meritless PFAA petition can have a profoundly negative effect on an individual and, even if dismissed or withdrawn, can leave residual records. PFA records could affect employment or any other opportunity that may include a background check. A meritless PFA can leave an indelible stain on a person's reputation. For this and other reasons, Pennsylvania's appellate courts have recognized the need for expungement of PFA records where appropriate.

Pennsylvania's PFAA has proven to be a powerful tool against domestic violence. It exists separate from, but related to, a criminal action and carries with it repercussions for the defendant beyond a prohibition of contact with the victim such as inclusion on the Pennsylvania State Police's registry, as well as possible criminal sanctions for violating the order.

Understanding the reach and accessibility of the registry—and the parallel importance of expungement—is important because PFAA petitions may receive ex parte interim orders and create a record of the petition and the temporary order regardless of the outcome of the case.

Similarly, consent agreements that may have language allowing for the vacating of orders subject to certain conditions will also result in registration. Though the registry is to be updated and vacated or expired orders purged within eight hours of receiving notice from the prothontary's office, as well as being excluded from "Right to Know" laws, the unintended consequences of entering agreed orders without factual findings or allowing temporary orders to remain in effect pending other litigation is that those orders are accessible and searchable through the PFA database (registration required). Coupled with the Pennsylvania Court of Common Pleas docket entries and any incident reports associated with the case, there remains a significant amount of information related to the PFA petition available in the public domain.

Though the PFAA is a necessary and overwhelmingly beneficial law, there are examples of procedural abuse by petitioners and petitions that do not reach the requisite preponderance of the evidence standard of proof. The PFAA is designed to shield victims against abuse, but has also been used offensively to gain advantages in custody cases or secure exclusive possession of a residence.

Even where a meritless or bad-faith petition is filed and dismissed, it is not uncommon that the mere filing of the petition will have the desired impact against the defendant and act as a smear against the name and reputation of the individual.

It is for that reason that Pennsylvania's appellate courts have established the availability of expungement under certain conditions. Pennsylvania established the courts' authority for expunging PFA records in the 1998 Superior Court case, P.E.S. v. K.L., 720 A.2d 487 (Pa.Super. 1998), which opined that despite there being no statutory authority to allow for PFAA expungements, the court opted to extend the concept of expungements to PFAA petitions where the petitioner "seeks to protect his or her reputation" and apply the standard used in criminal cases articulated inCommonwealth v. Wexler, 431 A.2d 877 (Pa. 1981). Wexler identifies seven factors for expunging a criminal record: the strength of the commonwealth's case against the defendant; the reasons the commonwealth gives for retaining the records; the petitioner's age, criminal records, and employment history; the length of time that has elapsed since the arrest and the petition to expunge; and the specific consequences the petitioner may endure should expungement be denied.

The Superior Court in P.E.S. drew a direct analogy between the justification for expunging PFAA petitions with that of psychiatric commitments—both had to be taken with care and improper applications of each can cause an unfair label to be applied to the individual and affect his or her reputation.

Until 2002, P.E.S. was the prevailing law for PFAA expungement until it was further clarified and entrenched by the Supreme Court in Carlacci v. Mazaleski, 798 A.2d 186 (2002). Carlacci involved a PFAA filed by a mother against the father of her child. A temporary, ex parte order was entered and subsequently extended before a full hearing on the merits of the petition. A hearing was scheduled, but prior to trial, the parties filed a stipulation that was entered as an order of court declaring the temporary PFA null and void. Upon seeking expungement of the voided temporary PFAA order, the trial court denied the motion, which was upheld by the Superior Court.

Applying P.E.S., the state Supreme Court upheld the application of the expungement process over appellee's argument that the lack of statutory authority reflected legislative intent not to allow expungement. The court further expanded the P.E.S. decision to identify and include the Pennsylvania constitutional right to protecting one's reputation (Const., Art 1, Section 1), as well as finding that Carlacci was entitled to expungement despite having had a temporary order entered. The dispositive fact was that, as in P.E.S., the petition was addressed and dismissed before the petitioner had the burden of proving that a PFAA order was justified. Further, the Supreme Court rejected the application of the Wexler criteria in this instance where, "a PFAA petition filed against a PFAA defendant has been dismissed by court order, as in P.E.S.; or the PFAA proceeding never evolve beyond the temporary order stage, as in the instant case."

Contrast the case law with the statutory authority for expungement in the criminal area: 18 Pa.C.S.A. Section 9122, allows expungement where no disposition has taken place within 18 months after the date of the arrest and law enforcement certifies that no disposition will take place. Additionally, the statute allows for expungements where an individual is 70 years or older; has been free from arrest for 10 years; has been dead for three years; the offense was a summary and the individual has been free from arrest for five years following the conviction.

Presently, a bill is anticipated to be signed by Gov. Tom Wolf, which would expand this statute to allow for expungement of nonviolent misdemeanor-2 and misdemeanor-3 offenses provided the individual has been free from arrest for 10 years.

It is unlikely, though understandable, that the expungement of PFAA petitions will receive a similar political effort. The Supreme Court's opinion will serve as the primary recognition that the right exists. Though without the benefit of statutorily defined criteria for expungement, the opinions of P.E.S. and Carlacci provide the authority needed to pursue expungement for those cases where appropriate.

Reprinted with permission from the May 6 issue of The Legal Intelligencer. (c) 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.