Bauder vs. Bauder No. 2012-40250

Civil Action – Protection from Abuse – Intervention by District Attorney – Omnibus Provision – Modification of PFA Order.

 

1. Intervention is governed by Pa.R.C.P. 2327, which states that at any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein if, inter alia, the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.  This fourth ground for intervention contained in Pa.R.C.P. 2327 is often called the Omnibus Provision.

2. Unless the intervening party falls within one of the definitional subsections outlined in Pa.R.C.P. 2327, that party has no right to intervene in a pending civil suit.

3. Generally speaking, intervention is a decision left to the sound discretion of a trial court and will not be disturbed on appeal absent an abuse of discretion.  Moreover, if the Petitioner falls within one of the classes of persons set forth in Rule 2327 and if none of the defenses found in Pa.R.C.P. 2329 apply, the Court must allow the intervening party to join the litigation.

4. A mere general interest in the litigation, or an interest in the issue that is collateral to the basic issues in the cause, or an indirect economic interest or motive with respect to the litigation, is not a sufficient basis for intervention pursuant to this subdivision.

5. The types of rights and interests that fall within the omnibus subsection of Rule 2327 are varied.

6. Courts must be careful to craft domestic violence orders that are both understandable and enforceable.

7. As it relates to allocation of scarce police resources and enforceability of well-intentioned Court Orders that have been rendered impractical by childish behavior, the Court stated that it could think of no one better than the District Attorney to bring these matters to the attention of a Court.

8. In the Court’s opinion, the phrase “any legally enforceable interest” should include situations where a District Attorney believes that well-intentioned Court Orders have been rendered problematic for the community by virtue of intervening circumstances and/or unpredictable behavior of those governed by the Court Order.  Accordingly, the Court granted the District Attorney’s request to intervene under Pa.R.C.P. 2327(4).

9. The Court scheduled a hearing at which testimony could be presented in support of the District Attorney’s request that the Court consider and modify the existing terms of the PFA Order.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL ACTION – LAW NO. 2012-40250

ELIZABETH J. BAUDER, Plaintiff

v.

JAY F. BAUDER, Defendant

ORDER OF COURT

AND NOW, to wit, this 17^th day of March, 2014, it is hereby ORDERED that the Motion of the Lebanon County District Attorney to intervene in the above-referenced case is GRANTED.  A hearing will be conducted at which time the District Attorney can present evidence to this Court.  The hearing will occur on the 8^th day of April, 2014, at 1:30 p.m. in Courtroom No. 1.

BY THE COURT:

BRADFORD H. CHARLES, J.

APPEARANCES:

Bret Wiest, Esquire For Elizabeth J. Bauder

BUZGON DAVIS

Jay F. Bauder Pro Se

David Arnold, Esquire Intervenor

DISTRICT ATTORNEY’S OFFICE

OPINION BY CHARLES, J., March 17, 2014

Before us is a Petition without precedent – the request of the Lebanon County District Attorney to intervene in a private Protection from Abuse (PFA) dispute.  The District Attorney seeks intervention at the behest of the Pennsylvania State Police; the State Police alleges that the nature of this Court’s existing PFA Order has encouraged and enabled childish behavior on the part of the above-captioned parties and has rendered enforcement of the PFA Order practically impossible and extremely burdensome.  The District Attorney wishes to intervene in order to present information and/or argument that the existing PFA Order should be modified due to ongoing enforceability and resource allocation concerns.  We issue this Opinion to address the District Attorney’s request to intervene.

I. FACTS

Elizabeth Bauder (hereafter “WIFE”) and Jay Bauder (hereafter “HUSBAND”) were married on April 4, 1987.  (N.T. 5).  During their marriage, the parties purchased a residence located at 3 Yoder Lane in Newmanstown, Pennsylvania.  They lived together at that residence with MOTHER’s two adult children.  On January 27, 2012, the parties separated when HUSBAND left the marital residence.   (N.T. 5).

At all times pertinent hereto, HUSBAND owned and operated a business that performed radon mitigation and waterproofing services.  (N.T. 7).  HUSBAND’s office was located in the basement level of the parties’ bi-level home.  (N.T. 7).  All filing cabinets, paperwork, telephones and computers relating to the business are located in the downstairs office.  (N.T. 7-8).  The office is separated from the rest of the marital residence by a door, but the door is not generally locked.  (N.T. 8).

Following the parties’ separation, this Court entered an Order permitting HUSBAND to have access to his office for purposes of conducting his business.  On August 8, 2013, HUSBAND was at the marital residence for the purpose of supposedly conducting business at his office.  (N.T. 8).  According to WIFE, HUSBAND apparently learned that WIFE was not paying the mortgage and he became irate.  He pounded on the door to the residence portion of the property and threatened WIFE.  (N.T. 9).  During the confrontation that ensued, WIFE claimed that HUSBAND pushed his chest into her with enough force to knock her backwards.   (N.T. 12).  As a result of this incident, both HUSBAND and WIFE filed mutual PFA Petitions against each other.

After several continuances, a full PFA hearing was conducted on September 12, 2013.  Both HUSBAND and WIFE provided conflicting testimony with respect to the August 8, 2013 incident.  Ultimately, the presiding Judge issued a PFA Order against HUSBAND for a period of one year.  In doing so, the Judge specifically addressed the issue of HUSBAND’s business.  The Judge asked HUSBAND why he could not move his business office somewhere else.  HUSBAND responded that he was living as a guest in a home located in Reinholds, PA.  He stated that it would not be possible to place the office in the home of his host.  (N.T. 56-57).  HUSBAND acknowledged that he was looking for other options with respect to relocating his office, but he had found none as of the September 12, 2013 hearing date.  (N.T. 56-57).

Ultimately, the Judge determined that the PFA should not prevent HUSBAND from continuing to earn a living.  He therefore permitted HUSBAND to have access to his office on a limited basis.  Specifically, HUSBAND was permitted to have access to his office between the hours of 8:00 a.m. and 5:00 p.m., Monday through Saturday “for business purposes only.”  The Judge further stated:  “Any contact with the Plaintiff while the Defendant is present in his office, be it verbal or otherwise, will be considered to be a violation of this Order and subject the Defendant to the appropriate sanctions.”  (N.T. 70).

The parties’ home located in Newmanstown is in a geographic area that is served by the Pennsylvania State Police.  From what was set forth in the Petition to Intervene and from what was presented briefly at the time of the hearing on the Petition to Intervene, State Police troopers have been repeatedly called to the Yoder Lane residence to address issues that arose when HUSBAND returned to the property to conduct his business.   Officials with the State Police complained to Lebanon County District Attorney David Arnold that troopers were being continually dispatched to the Yoder Lane residence, thus placing “a tremendous strain on the resources of the State Police.”

On February 24, 2014, District Attorney David Arnold filed a Motion to Intervene.  He requested that the Court schedule a hearing “to determine whether the terms of the PFA should be modified.”  During comments made when the Motion to Intervene was presented to the Court, District Attorney Arnold claimed that State Police Troopers were called to the Bauders’ home on seventeen occasions within the recent past and that two criminal charges were filed as a result of these dispatches.  The District Attorney represented that WIFE’s two adult sons “continue to intentionally instigate and antagonize [HUSBAND] when he is entering the business, at the business, and leaving the business.”  Mr. Arnold alleged that WIFE and/or her sons would undertake actions such as turning off electricity to the office in an effort to provoke HUSBAND.  More ominously, assaultive behavior occurred, one of which involved an allegation that WIFE’s son attempted to run down HUSBAND with his car.

Ultimately, District Attorney Arnold argued that it was impossible and burdensome for the Pennsylvania State Police to enforce the PFA Order as it is currently drafted.  The District Attorney argued that so long as HUSBAND is permitted to return to the marital property, confrontations and disputes will arise that will deteriorate until police officers are required to intervene.  The District Attorney pointed out that State Police Troopers have a broad territory to patrol and that they cannot be tied down continuously at the Bauders’ residence.

At the hearing we conducted on the Motion to Intervene, HUSBAND did not oppose the District Attorney’s request for intervention.  However, WIFE’s counsel did object.  In fact, WIFE’s attorney took the position that this Court lacked the authority to undertake any action whatsoever regarding the existing PFA because an appeal of that PFA is now pending before the Pennsylvania Superior Court.  We quickly rejected counsel’s allegation that a Trial Court cannot consider issues pertaining to a PFA Order while an appeal was pending as impractical and potentially dangerous.  However, the substantive objection of WIFE to the District Attorney’s Petition to Intervene could not be dismissed so easily.  Therefore, we took Mr. Arnold’s request to intervene under advisement. We issue this Opinion today in order to explain our decision to grant Attorney’s Arnold’s request to intervene.

II. LEGAL PRECEPTS REGARDING INTERVENTION

Intervention is governed by Pa.R.C.P. 2327, which states:

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if:

(1) the entry of a judgment in such action or the satisfaction of such judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered; or

(2) such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the Court or an officer thereof; or

(3) such person could have joined as an original party in the action or could have been joined therein; or

(4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.

Pa.C.R.P. 2327.  Unless the intervening party falls within one of the definitional subsections outlined above, that party has no right to intervene in a pending civil dispute.  See, In re Pennsylvania Crime Commission, 309 A.2d 401 (Pa. 1973).

We begin with the recognition that subsections (1), (2) and (3) of Rule 2327 lack any conceivable applicability to the District Attorney’s Petition to Intervene.  Thus, we must limit our analysis to what we will describe as the omnibus provision of Rule 2327(4) and whether it authorizes the District Attorney’s intervention into the party’s PFA dispute.

Generally speaking, intervention is a decision left to the sound discretion of a trial court and will not be disturbed on appeal absent an abuse of discretion.  Wilson v. State Farm Mutual Automobile Ins. Co., 517 A.2d 944 (Pa. 1986).  Moreover, it has been stated that if the Petitioner falls within one of the classes of persons set forth in Rule 2327 and if none of the defenses found in Pa.R.C.P. 2329 apply, the Court must allow the intervening party to join the litigation.  In re Pennsylvania Crime Commission, supra.

A noted commentator has described the omnibus provision of Rule 2327 as follows:

The exact boundaries of what constitutes a “legally enforceable interest” for purposes of intervention, however, are not clear since the question depends upon the careful exercise of discretion and a consideration of all the circumstances involved in a particular case.  The term owes its origin to the desire of the Courts to prevent the curious and the meddlesome from interfering with litigation not affecting their rights.  Thus, a mere general interest in the litigation, or an interest in the issue that is collateral to the basic issues in the cause, or an indirect economic interest or motive with respect to the litigation, is not a sufficient basis for intervention pursuant to this subdivision.

7 Goodrich Am Ram 2d, § 2327:8 (citations omitted).

The types of “rights and interests” that fall within the omnibus subsection of Rule 2327 are varied.  For example, a welfare recipient was permitted to intervene in an action filed by a newspaper for access to records that pertain to receipt of welfare.  McMullan v. Wohlgemuth, 281 A.2d 836 (Pa. 1971).  A public defenders association was permitted to intervene on behalf of eighty-four patients in a dispute regarding reassignment of mentally retarded patients from one facility to another.  Commonwealth Dept. of Public Wefare v. Court of Common Pleas of Philadelphia Co., 485 A.2d 755 (Pa. 1984).  A police partrolman was permitted to intervene in a labor dispute between his police union and the township that employed him.  Falls Township v. Police Assoc. of Falls Township, 579 A.2d 430 (Pa.Cmwlth. 1990).  On multiple occasions, news media outlets have been permitted to intervene in order to protect their right to provide public coverage of matters before the Court.  See, e.g., Kurtzman v. Hankin, 714 A.2d 450 (Pa.Super. 1998).  On the other hand, parties have been denied the opportunity to intervene when their sole purpose is to support one contestant against the other.  See Dahl v. Wooster, 1958 W.L.5121 (11 Pa. D&C 2d 677(1957)).  Similarly, a local bar association was refused permission to intervene to challenge the allegedly unauthorized practice of law by one of the litigants’ counsel because the issue was considered “too tangential and collateral” to the basic issues in dispute between the parties.  Pennsylvania Railroad Co. v. Hughart, 222 A.2d 736 (Pa. 1966).  Unfortunately, no precedent exists that is remotely similar to the District Attorney’s request now before us.

III. DISCUSSION

Domestic violence cases present unique challenges to law enforcement.  By their very nature, domestic violence cases involve raw emotion and unpredictable behavior.  Almost always, both parties to a domestic dispute believe passionately that police should side with them.  Within the context of an emotionally charged and rapidly evolving domestic violence dispatch, police officers are required to exercise split-second judgment knowing that their actions will be second guessed by supervisors, prosecutors, lawyers and judges at a later date.  Because of the above concerns, Courts must be careful to craft domestic violence orders that are both understandable and enforceable.

As it relates to enforceability of PFA Orders, we as Judges do not accompany police when they are dispatched to the scene of an alleged PFA violation.  While we may sometimes hear about the aftermath of these dispatches, this does not always occur, especially when litigants appear content to continue their sophomoric battles secure in the knowledge that police will respond before matters get too out of hand.

Judges need to be told if or when their Court Orders exacerbate problems for the parties or for the community.  In cases where the parties themselves do not appear willing or able to recognize the impact of their behavior, someone must have the ability to communicate legitimate concerns to the Court.  As it relates to allocation of scarce police resources and enforceability of well-intentioned Court Orders that have been rendered impractical by childish behavior, we can think of no one better than the District Attorney to bring these matters to the attention of a Court.

According to District Attorney Arnold, the Bauders’ ongoing domestic war has been exacerbated and to some degree enabled by the well-intentioned PFA Order that we entered in the above-referenced case.  Were we to refuse permission for Mr. Arnold to intervene in order to communicate his legitimate law enforcement concerns, the problems created by the Bauders for themselves, for Pennsylvania State Police and, by extension, for the remainder of this community, would continue unabated.

The omnibus subsection of Rule 2327 permits intervention by anyone with “any legally enforceable interest” in a pending dispute.  As noted above, the term “any legally enforceable interest” has been broadly defined in a wide variety of circumstances.  In our opinion, the phrase should include situations were a District Attorney believes that well-intentioned Court Orders have been rendered problematic for the community by virtue of intervening circumstances and/or unpredictable behavior of those governed by the Court Order.  Accordingly, we will grant the District Attorney’s request to intervene under Pa.R.C.P. 2327(4).

With all of the above being said, we wish to communicate the following to the parties and to the District Attorney:

(1) We will not permit the District Attorney to “take sides” between HUSBAND and WIFE.  The District Attorney is being permitted to intervene on behalf of the Pennsylvania State Police, and it is that interest alone that the District Attorney should represent.

(2) While we will permit the District Attorney to present evidence at a hearing from police officers regarding the difficulties caused by the Bauders’ conduct and the existing wording of the PFA, we will not permit the District Attorney to make any specific recommendations as to whether or how the existing PFA Order should be modified.  Stated differently, we will permit the District Attorney to request that a modification be considered, but we will not permit the District Attorney to specifically recommend how the Order should be modified.

(3) Any witnesses presented by the District Attorney on behalf of his request for a modification of the Court Order will be subject to cross examination by both HUSBAND and WIFE.

(4) Following a hearing to be conducted on District Attorney Arnold’s Petition, we will permit both HUSBAND and WIFE to argue and/or recommend options with respect to whether or how the existing PFA Order should be modified.

(5) We make no promises with respect to whether or how our PFA Order would be modified.  We remind District Attorney Arnold that mere difficulty of enforcement will not alone justify a modification of the PFA Order.  However, if the District Attorney can present testimony and evidence to establish that the existing PFA Order has created abnormal resource allocation problems for police or has become effectively impractical to enforce, such evidence could justify a modification of the existing Court Order.

(6) The one year PFA Order entered by this Court on September 12, 2013 shall continue in effect until it expires or it is vacated by the Pennsylvania Superior Court.  The question that we will consider at the upcoming hearing is not whether the PFA Order should continue, but rather whether or how its terms can be improved to facilitate meaningful enforcement.

With the above comments, we will issue an Order today permitting the District Attorney to intervene.  We will also schedule a hearing at which testimony can be presented in support of the District Attorney’s request that we reconsider and modify the existing terms of the PFA Order.