PARAPHRASING SISTER SLEDGE: “ARE WE FAMILY?” Superior Court decides listening to sex isn’t worthy of a PFA
Some readers will contend that we publish this non-precedential case for its prurient value but one of the most interesting topics in family law today is “Who has standing to bring a case?” And the opinion by Judge Victor Stabile in White v. Urban is noteworthy because it surveys law from other states.
That’s our excuse. Now, on to the sex and abuse. In late August 2021, Anthony Mark White brought an action under the Protection from Abuse law against Michael Urban. Michael is married to Traci but they have an “open” marriage. Traci invited Anthony into the relationship. By the time of the trial Traci had moved on from living with Michael and having sex with Anthony to living with Anthony. Consistent with the unpublished rules of open marriages, when Traci decided that she wanted to have sex with Anthony, she informed her husband and he consented. In this instance (Traci was involved with other men as well) her husband did express the desire to monitor the intimacy by listening to the extramarital sex on the phone. Curiously, Anthony and Michael did not have any substantive in person contact until the abuse proceedings began although they did speak by phone to arrange when Traci would be available for Anthony.
As one might suspect, this arrangement did not work out. By December, 2020 Traci indicated that she wanted to be with Anthony and Michael was now excluded from the planning and the assignations. Michael was not pleased with this, and he began to threaten Anthony. By August, Anthony decided he needed an order for protection under 23 Pa.C.S. 6101 et seq.
The threats, accompanied at various times by hockey sticks and garden rakes, were sufficient to merit a Protection from Abuse Order in the view of the trial court. The nettlesome issue was whether Anthony qualified for the protections. Section 6102 indicates that the law is intended to protect present and former spouses, “persons living as spouses, parents and children, persons related by consanguinity or affinity, current and former sexual partners or intimate partners or persons who share biological parenthood.”
Michael asserted that Anthony checked none of those statutory boxes. The trial court disagreed and entered a final PFA order in December, 2021. Michael appealed and we now have White v. Urban 394 EDA 2022 (November 22, 2022).
The Superior Court found that Anthony did not qualify for protection. His only plausible claim of standing under Section 6102 was that he was a “former intimate partner” of a man he never really met except to greet at a New Years’ party all three attended. Yes, they did speak by phone, but those conversations seem to have been confined to arranging when Traci would be available for sex with Anthony. The Court notes that while Traci had intimate relationships with both her husband and Anthony, her linkage to both men did not create an intimate relationship between Michael and Anthony (intimacy by proxy?). Citing McCance v. McCance, 908 A.2d 905, 908 (Pa.Super. 2006) the appellate court found that the goal of the statute is to preserve household tranquility and there was no evidence that the threesome had ever occupied a household at the same time. The facts were contrasted with Evans v. Braun, 12 A.3d 395, a 2010 Superior Court opinion affirming relief where the threats were made by co-workers who had dated twice but otherwise not formed a relationship. The Stabile opinion in the instant case suggests that Evans v. Braun may have overreached the purpose of the statute and that there are other criminal statutes that would have been appropriate. Stabile found that unless Michael and Anthony had a romantic relationship there was no basis for relief and to grant such invites a broad range of bit characters to crowd the Protection from Abuse stage.
The order for relief was vacated. Curiously the court suggests that Traci would have standing to seek relief although there are no facts suggesting that Michael had threatened or harmed his wife. It’s a wild case with descriptions of sexual acts better left to adult magazines or websites. But it does add to the “body” of law addressing third party standing in family related matters.
