K.N.B. v. M.D., Aplt. ( 2021 )

[J-13-2021]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
K.N.B., : No. 20 WAP 2020
:
Appellee : Appeal from the Order of the
: Superior Court entered January 30,
: 2020 at No. 1003 WDA 2018
v. : affirming the Order of the Court of
: Common Pleas of Clarion County
: entered June 15, 2018 at No. 155
M.D., : CD 2018.
:
Appellant : SUBMITTED: January 25, 2021
OPINION
JUSTICE WECHT DECIDED: SEPTEMBER 22, 2021
The main question in this appeal is whether a petition seeking a protective order
under the Protection of Victims of Sexual Violence or Intimidation Act (“PVSVIA”)1 is
subject to the two-year statute of limitations governing certain enumerated civil actions or
the six-year catch-all statute of limitations that applies to non-enumerated actions.
Because we conclude that the six-year limitations period applies, we affirm.
The Appellee in this case, K.N.B., was a freshman at Clarion University in 2015.
K.N.B. claims that a fellow Clarion student, M.D., sexually assaulted her in September
2015. K.N.B. initially did not report the assault to the police. Only after seeing M.D. at a
Walmart in early 2018 did K.N.B. report the assault to the Clarion University Police
Department. By this time, K.N.B. was no longer a student at the University.
1 See 42 Pa.C.S. §§ 62A01-62A20.
Along with reporting the incident to the police, K.N.B. also petitioned the Clarion
County Court of Common Pleas for a Sexual Violence Protective Order (“SVPO”) under
the PVSVIA. The General Assembly enacted the PVSVIA in 2014 to give victims of
sexual violence “safety and protection from further interactions with their offender,
regardless of whether they seek criminal prosecution.” 42 Pa.C.S. § 62A02(5). The law
allows victims of sexual violence who would not be able to obtain a Protection From Abuse
Order2 to seek a SVPO prohibiting their abusers from contacting them, under penalty of
arrest. Id. §§ 62A07(b)(1), 62A12. To establish a right to relief under the PVSVIA, a
plaintiff must:
(1) assert that the plaintiff or another individual, as appropriate, is a victim
of sexual violence or intimidation committed by the defendant; and
(2) prove by preponderance of the evidence that the plaintiff or another
individual, as appropriate, is at a continued risk of harm from the
defendant.
Id. § 62A06(a).
After K.N.B. filed her petition, the court entered a temporary SVPO and scheduled
a hearing to consider whether a final order should issue.3 Prior to that hearing, M.D.
petitioned the trial court to vacate the temporary SVPO and dismiss K.N.B.’s petition with
prejudice, claiming that the petition was barred by the statute of limitations. The trial court
rejected M.D.’s argument. Noting that the PVSVIA itself does not include a statute of
limitations, the trial court held that claims under the Act are subject to the six-year catch-
all statute of limitations under the Judicial Code. 42 Pa.C.S. § 5527(b) (imposing a six-
2 See 23 Pa.C.S. §§ 6101-6122. Under the Protection From Abuse Act, the
definition of “abuse” is limited to specified acts occurring “between family or household
members, sexual or intimate partners[,] or persons who share biological parenthood[.]”
Id. § 6102.
3 The PVSVIA authorizes trial courts to conduct ex parte proceedings and enter
temporary SVPOs when necessary to protect the plaintiff, or another individual, from “an
immediate and present danger.” 42 Pa.C.S. § 62A06(b). A full hearing must then be held
within ten days of the filing of the petition. Id. § 62A06(a).
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year statute of limitations for “[a]ny civil action or proceeding which is neither subject to
another limitation specified in this subchapter nor excluded from the application of a
period of limitation by section 5531 (relating to no limitation)”). Consequently, the court
concluded that K.N.B.’s petition was filed within the applicable statute of limitations.
At the final hearing on her petition, K.N.B. testified regarding the details of the 2015
assault. K.N.B. also testified that, on the day after the assault, she and M.D. agreed to
see each other again. According to K.N.B., she “felt like [she] did something wrong by
not wanting to have sex with [M.D.] again” and “[she] felt like [she] owed him to have sex
with him again.” Notes of Testimony (“N.T.”), 6/15/2018, at 17. During this second
encounter, she started to have sex with M.D., but then she “just lost it, and . . . was like
I’m done.” Id. at 18.
K.N.B. also testified that, in May 2016, M.D. sent her a Facebook message stating,
“Okay, so I just want to say I’m sorry for being a douche. I know it was a dick thing, and I
am sorry.” Id. at 22. In addition to this virtual interaction, K.N.B. stated that she and M.D.
occasionally would attend the same parties, including one in November 2016 where M.D.
approached her, “cracked a joke,” and tried to fist bump her. Id. at 25. When this
happened, K.N.B. “[went] into [an] episode of traumatic stress, and . . . the whole world
[stopped], and [she could not] think . . . of anything else but . . . him being there.” Id. at
24.
K.N.B. also testified that she would see M.D. on campus sometimes, and she once
saw him walking his dog by her house. K.N.B. explained that these encounters triggered
panic attacks, and that she was diagnosed with post-traumatic stress disorder. Id.
Indeed, K.N.B. testified that she suffered a panic attack after seeing M.D. in Walmart in
2018, which led her to seek the SVPO. K.N.B. explained that her reason for seeking a
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protective order was to no longer “worry about [M.D.] coming up to [her] . . . in public.” Id.
at 32.
For his part, M.D. testified that the initial sexual encounter with K.N.B. in 2015 was
consensual. With regard to the second encounter, M.D. testified that he and K.N.B. again
had consensual sex, but he ejaculated quickly and, rather than admitting this to K.N.B.,
told her that he “was just not feeling it.” Id. at 75. According to M.D., his May 2016
Facebook message to K.N.B. was meant to be an apology for saying that he was “not
feeling it.” Id. at 75-76.
After the hearing, the court entered a final SVPO prohibiting M.D. from contacting
K.N.B. for one year. In its Rule 1925 opinion, the court found K.N.B.’s testimony to be
credible in all respects and determined that M.D. was less credible than K.N.B. As for the
“continued risk of harm” element, the court concluded that K.N.B. proved by a
preponderance of the evidence that she risked ongoing harm from M.D. The court
underscored that, even though M.D. did not make sexual advances toward K.N.B. after
September 2015, K.N.B. experienced mental and emotional harm (including panic
attacks) and feared that M.D. would approach her in public again. Given this risk of
additional emotional trauma, the court found that K.N.B. met her burden under the
PVSVIA of demonstrating a continued risk of harm.
On appeal to the Superior Court, M.D. again argued that actions brought under the
PVSVIA are subject to a two-year statute of limitations. Specifically, he emphasized that
the Judicial Code provides that the following civil actions and proceedings must be
commenced within two years:
(1) An action for assault, battery, false imprisonment, false arrest, malicious
prosecution or malicious abuse of process.
(2) An action to recover damages for injuries to the person or for the death
of an individual caused by the wrongful act or neglect or unlawful violence
or negligence of another.
[J-13-2021] - 4
***
(5) An action upon a statute for a civil penalty or forfeiture.
***
(7) Any other action or proceeding to recover damages for injury to person
or property which is founded on negligent, intentional, or otherwise tortious
conduct or any other action or proceeding sounding in trespass, including
deceit or fraud, except an action or proceeding subject to another limitation
specified in this subchapter.
42 Pa.C.S. § 5524.
M.D. first argued that K.N.B.’s petition constitutes an action for battery under
Subsection 5524(1), since the petition alleges that K.N.B. is victim of sexual battery. The
Superior Court disagreed, explaining that the PVSVIA “does not provide victims of sexual
violence with a cause of action for tortious conduct.” K.N.B. v. M.D., 227 A.3d 918, 924
(Pa. Super. 2020). Instead, “[i]t requires merely the assertion of tortious conduct.” Id. at
925. In other words, the court interpreted the phrase “[a]n action for . . . battery,” as used
in Subsection 5524(1), to mean a tort action for battery, which K.N.B.’s statutory action
under the PVSVIA plainly is not.
M.D. next argued that Subsection 5524(2) applies here given that K.N.B. sought
damages in her petition when she asked the court to “[d]irect [d]efendant to pay [p]laintiff
for the reasonable financial losses suffered as a result of the abuse.” SVPO Petition at ¶
10. For the same reason, M.D. also asserted that K.N.B.’s petition is an action to recover
damages for tortious conduct under Subsection 5524(7). The Superior Court rejected
both of these arguments as well, explaining that the PVSVIA “does not provide for any
recovery of damages to person or property. Rather, the PVSVIA provides ‘the victim with
a civil remedy requiring the offender to stay away from the victim, as well as other
appropriate relief.’” K.N.B., 227 A.3d at 925 (quoting 42 Pa.C.S. § 62A02(6)). Thus, the
trial court lacked the authority to award K.N.B. damages under the Act, and K.N.B.’s futile
request for damages did “not convert the petition for a SVPO into a civil complaint seeking
damages.” Id.
[J-13-2021] - 5
Finally, M.D. argued that SVPO petitions constitute “[a]n action upon a statute for
a civil penalty” under Subsection 5524(5), since the PVSVIA provides that a trial court
must assess a $100 surcharge against a defendant whenever it enters a SVPO. See 42
Pa.C.S. § 62A05(c.1). The panel was not persuaded by this argument either. It held that
the $100 assessment is not a civil penalty, given that it is explicitly labeled as a surcharge
and the funds are ultimately “paid to various governmental units, primarily for the purpose
of carrying out the provisions of the [Act].” K.N.B., 227 A.3d at 926; see 42 Pa.C.S.
§ 62A05(c.1) (providing that $25 “shall be used by the Pennsylvania State Police to
establish and maintain the Statewide registry of protection orders,” $25 “shall be
forwarded to the Department of Public Welfare for use for victims of sexual assault,” and
the remaining $50 shall be split between the sheriff and the court “to carry out the
provisions of this chapter”).
Having determined that K.N.B.’s petition did not fall within any of Subsection
5524’s enumerated categories, the Superior Court concluded that the Judicial Code’s
catch-all provision applies. That provision states that the statute of limitations is six years
for civil actions or proceedings that are not subject to another limitation elsewhere in the
Code.4 The court therefore concluded that K.N.B.’s petition, which she filed twenty-nine
months after the alleged assault, was timely.
M.D. also raised the issue of whether the trial court erred in concluding that K.N.B.
proved by a preponderance of the evidence that she was at a “continued risk of harm” as
the PVSVIA requires. According to M.D. the trial court erred because it viewed M.D.’s
own intent as immaterial to whether K.N.B was truly at a risk of harm. M.D. argued that
the PVSVIA requires that any such fear of harm must be objectively reasonable under the
circumstances. And, in M.D.’s view, K.N.B.’s fear was unreasonable given that he never
4 See 42 Pa.C.S. §5527(b).
[J-13-2021] - 6
sought out K.N.B. after the May 2016 Facebook message and did not do anything
“untoward” to her when he saw her at social events. Put differently, M.D. maintained that,
“[i]f [K.N.B.] was indeed fearful, her fear was irrational and unreasonable, which should
not be the standard for entry of a PVSVIA order.” K.N.B., 227 A.3d at 927.
The Superior Court held that K.N.B. presented sufficient evidence for the trial court
to conclude that she was at a continued risk of harm. In so holding, the court relied upon
E.A.M. v. A.M.D. III, 173 A.3d 313, 319 (Pa. Super. 2017), a case in which the appellant
had argued that his repeated presence at events at his former school, where his victim
was also present, did not demonstrate a continued risk of harm. The E.A.M. court rejected
this reasoning, explaining that such a recurring presence, when it causes the victim
“apprehension, fear, and emotional distress,” is sufficient evidence to demonstrate a
continued risk of harm. Id. at 321. Analogizing E.A.M. to the present case, the panel
below concluded that the trial court did not err in entering a final SVPO given that M.D.'s
repeated presence had caused and likely would continue to cause K.N.B. significant
emotional trauma.
M.D. then filed a petition for allowance of appeal, which we granted to consider
both whether the six-year statute of limitations applies under the PVSVIA and whether
the continued risk of harm element can be demonstrated based solely on the victim’s
subjective fear of harm. Both of these issues are pure questions of law, which we review
de novo. Commonwealth v. Hacker, 15 A.3d 333, 335 (Pa. 2011).
Our interpretation of the PVSVIA, and the Judicial Code as a whole, is governed
by the Statutory Construction Act.5 Of paramount importance here is the principle that
the best indication of the General Assembly’s intent is the statute’s plain language. Watts
v. Manheim Twp. Sch. Dist., 121 A.3d 964, 972 (Pa. 2015). Accordingly, “[w]hen the
5 See 1 Pa.C.S. §§ 1501-1991.
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words of a statute are clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b).
Beginning with the statute of limitations question, we note that the General
Assembly did not explicitly include a statute of limitations in the PVSVIA. We therefore
must determine under which category in the Judicial Code the legislature intended such
petitions to fall. M.D. first argues that “a PVSVIA proceeding is, at its essence, one arising
from an alleged tort,” Brief for M.D. at 31, and thus should be subject to the two-year
statute of limitations in Subsection 5524(1) of the Judicial Code, which governs actions
“for assault, battery, false imprisonment, false arrest, malicious prosecution or malicious
abuse of process.” 42 Pa.C.S. § 5524(1).
Like the Superior Court, we conclude that a petition seeking a protective order
under the PVSVIA is not “[a]n action for assault [or] battery” within the meaning of Section
5524. Id. As the intermediate court explained, “the PVSVIA does not provide victims of
sexual violence with a cause of action for tortious conduct;” it merely requires that a
petitioner assert that he or she has been a victim of an enumerated sex crime.6 So, while
tortious conduct might be a factual predicate to filing a PVSVIA petition, that alone does
not transform a petition brought under the PVSVIA into an intentional tort action for which
the two-year statute of limitations applies pursuant to Subsection 5524(1).
Nor are we persuaded that an action brought under the PVSVIA is “[a]n action to
recover damages” for purposes of Subsection 5524(2). See 42 Pa.C.S. § 5524 (providing
that the statute of limitations is two years for “[a]n action to recover damages for injuries
to the person or for the death of an individual caused by the wrongful act or neglect or
unlawful violence or negligence of another”). While M.D. is correct that K.N.B.’s petition
6 K.N.B., 227 A.3d at 924-25; 42 Pa.C.S. § 62A06(a)(1) (stating that a petitioner
must “assert” that he or she is a “victim of sexual violence or intimidation”); see id.
§ 62A03 (defining “sexual violence”).
[J-13-2021] - 8
requested that the trial court award compensation “for the reasonable financial losses
suffered as a result of [M.D.’s] abuse,”7 the PVSVIA does not explicitly allow for the
recovery of personal or property damages. Instead, the PVSVIA provides “the victim with
a civil remedy requiring the offender to stay away from the victim, as well as other
appropriate relief.” 42 Pa.C.S. § 62A02(6); see id. § 62A07 (explaining that courts “may
issue an order or approve a consent agreement to protect the plaintiff or another
individual, as appropriate, from the defendant”). K.N.B.’s request for damages in her
PVSVIA petition did not transform the proceedings into an action to recover damages, in
the same way that a request for M.D.’s immediate arrest would not have transformed this
matter into a criminal case.
As Justice Saylor points out in his Concurring Opinion, the PVSVIA authorizes
courts to order “any other appropriate relief,” yet does not specify what sort of relief might
be “appropriate.” See 42 Pa.C.S. § 62A07(b)(2); Concurring Opinion at 2. While we
acknowledge that this vague language arguably could be construed to encompass tort
damages, we do not believe that the General Assembly—simply by empowering courts
to grant “appropriate relief”—intended to ordain that PVSVIA cases are “action[s] to
recover damages” under the Judicial Code. Indeed, the “any other appropriate relief”
proviso in the PVSVIA was taken word-for-word from the Protection From Abuse Act.8
And similar language appears in other Pennsylvania statutes, some of which explicitly
permit plaintiffs to obtain monetary damages notwithstanding the “other appropriate relief”
7 SVPO Petition at ¶ 10.
8 23 Pa.C.S. § 6108(a)(10) (authorizing courts to grant “any other appropriate relief
sought by the plaintiff” in Protection From Abuse Act cases).
[J-13-2021] - 9
catch all.9 In short, the mere availability of “other appropriate relief” in PVSVIA cases
does not change the essence of the underlying proceeding, which is an action seeking a
protective order under the PVSVIA.10 Finally, M.D. argues briefly that PVSVIA
petitions fall within Subsection 5524(5), which provides that a two-year statute of
limitations applies to “[a]n action upon a statute for a civil penalty or forfeiture.” 42 Pa.C.S.
§ 5524(1). M.D. claims that PVSVIA proceedings constitute an action for a civil penalty
given that the statute requires trial courts to impose a $100 surcharge against the
defendant whenever a final SVPO is entered. See 42 Pa.C.S. § 62A05(c.1) (“When an
order is granted under section 62A06 (relating to hearings), a surcharge of $100 shall be
assessed against the defendant.”).
We agree with the lower courts that the statutory imposition of a $100 surcharge
does not mean that actions brought under the PVSVIA are “for a civil penalty.” The
ordinary meaning of a civil penalty is “[a] fine assessed for a violation of a statute or
regulation,” usually levied to punish and/or deter future violations.11 Here, however, the
9 See, e.g., 18 Pa.C.S. § 3051(c)(5) (allowing courts to award “[a]ny other
appropriate relief” to victims of human trafficking); 18 P.S. § 11.1304(a) (providing that
crime victims may seek “other appropriate relief” in civil actions against their offenders).
10 Because the PVSVIA does not explicitly allow plaintiffs to recover damages, we
also reject M.D.’s contention that PVSVIA proceedings constitute an action to recover
damages for tortious conduct under Subsection 5524(7). See 42 Pa.C.S. § 5524(7)
(providing that a two-year statute of limitations applies to “[a]ny other action or proceeding
to recover damages for injury to person or property which is founded on negligent,
intentional, or otherwise tortious conduct or any other action or proceeding sounding in
trespass, including deceit or fraud[.]”).
11 BLACK’S LAW DICTIONARY (11th ed. 2019) (giving the example: “the EPA levied a
civil penalty of $10,000 on the manufacturer for exceeding its pollution limits”); see
Pantuso Motors, Inc. v. Corestates Bank, N.A., 798 A.2d 1277, 1282 (Pa. 2002) (“A
penalty . . . is fixed, ‘not as a pre-estimate of probable actual damages, but as a
punishment, the threat of which is designed to prevent the breach.’”); Cohen v. Zarwin &
Baum, P.C., 1993 WL 532963, at *2 (E.D. Pa. 1993) (“[A]n ‘action upon a statute for a
[J-13-2021] - 10
PVSVIA’s $100 assessment is not labeled as a fine or penalty. It is explicitly categorized
as a “surcharge,” and all funds collected are earmarked for entities tasked with carrying
out the provisions of the PVSVIA.12 While the difference may seem semantic to some,
legislative intent is paramount, and the General Assembly clearly intended to impose a
“surcharge” to offset the enforcement costs associated with protective orders; it did not
purport to levy civil fines for past incidences of sexual assault. See Pantuso Motors, Inc.
v. Corestates Bank, N.A., 798 A.2d 1277, 1283 (Pa. 2002) (declining to hold that “a
remedy which the General Assembly has specifically designated as liquidated damages
is in fact a [civil] penalty or forfeiture”).
More importantly, the $100 surcharge is at best an ancillary aspect of the overall
action in this case. The primary purpose of PVSVIA actions—indeed, the entire purpose
of the PVSVIA itself—is to “provid[e] the victim with a civil remedy requiring the offender
to stay away from the victim[.]” 42 Pa.C.S. § 62A02(6). The $100 surcharge alone does
not alter the essential character of the overall action, which is a statutory proceeding
brought by a victim of sexual abuse to obtain a protective order. Accordingly, we reject
M.D.’s argument that PVSVIA petitions are subject to a two-year statute of limitations
under Subsection 5524(5).
Because PVSVIA actions do not fit within any of the listed actions in Section 5524,
the lower courts correctly concluded that the catch-all statute of limitations applies. See
42 Pa.C.S. §5527(b) (imposing a six-year statute of limitations for “[a]ny civil action or
proceeding which is neither subject to another limitation specified in this subchapter nor
excluded from the application of a period of limitation by section 5531 (relating to no
civil penalty or forfeiture’ encompasses statutory civil actions that are penal, deterrent,
punitive, and non-compensatory in nature.”).
12 See 42 Pa.C.S. § 62A05(c.1) (dividing the $100 surcharge between the State
Police, the Department of Public Welfare, the Sheriff, and the court).
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limitation)”). Accordingly, K.N.B.’s PVSVIA petition was not barred by the statute of
limitations.
Turning to his second issue, M.D. contends that the trial court erred in finding that
K.N.B. met the second prong of the PVSVIA, under which plaintiffs must “prove by
preponderance of the evidence that the plaintiff or another individual, as appropriate, is
at a continued risk of harm from the defendant.” 42 Pa.C.S. § 62A06(a). While M.D.
does not dispute that the fear and trauma associated with a plaintiff publicly encountering
her assailant might constitute a continued risk of harm, he argues that trial courts must
consider not only the plaintiff’s fear, but also whether the defendant actually intends to
harm the plaintiff. See Brief for M.D. at 50 (“A fear of harm must be reasonable, subject
to an objective determination by the court that the defendant did something untoward in
being nearby the plaintiff or, at the very least, that the defendant was knowledgeable of
plaintiff's whereabouts and knew the fear that [the] defendant’s presence was causing.”).
Thus, M.D. contends that “K.N.B.'s petition should have been decided based upon an
objective determination as to whether M.D.'s presence in the vicinity of K.N.B. was for the
purposes intimidating M.D. [sic] or, at the very minimum, knowing that K.N.B. was nearby,
with M.D. knowing his presence was causing K.N.B. fear.” Id. at 47.
Contrary to M.D.’s suggestion, nothing in the text of the PVSVIA indicates that the
statute’s second prong rises or falls depending upon whether the defendant intends to
harm the plaintiff. The law requires only what it says: the plaintiff must prove that he or
she (or another individual) is “at a continued risk of harm from the defendant.” 42 Pa.C.S.
§ 62A06(a). The defendant’s own intent may inform this inquiry in some cases. When a
plaintiff argues that she risks additional physical abuse by the defendant, for example, the
defendant’s own subjective intent likely will influence the trial court’s risk-of-harm analysis.
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Here, however, the trial court found that K.N.B. risks ongoing harm from M.D. given
that his very presence triggers K.N.B.’s panic attacks. The court also noted that K.N.B.
suffers from PTSD from the assault and is in therapy as a result. Logically, then, whether
or not M.D. subjectively intends to harm K.N.B. is irrelevant under the statute because
she risks ongoing harm regardless of his intent. See E.A.M., 173 A.3d at 321 (holding
that the defendant’s recurring presence, when it causes the victim “apprehension, fear,
and emotional distress,” is sufficient evidence to demonstrate a continued risk of harm
under the PVSVIA).
M.D. also emphasizes that the Protection From Abuse Act defines “abuse” to
include, among other things, “[p]lacing another in reasonable fear of imminent serious
bodily injury.” 23 Pa.C.S. § 6102(a) (emphasis added). But that fact actually weakens
M.D.’s argument, since it demonstrates that the General Assembly, in a statute that
predates the PVSVIA, knew exactly how to convey that a plaintiff’s fear of harm must be
objectively reasonable to support the issuance of a protective order. Unlike the Protection
From Abuse Act, however, the PVSVIA contains no such limitation. It requires only an
assertion of sexual violence or intimidation combined with proof that the plaintiff (or some
other person) “is at a continued risk of harm from the defendant.” 42 Pa.C.S. § 62A06(a).
Unlike the Concurring and Dissenting Opinion, we decline M.D.’s invitation to read
into the PVSVIA a requirement that a plaintiff’s fear of encountering the defendant must
be objectively reasonable under the circumstances. See Brief for M.D. at 60 (“Justice
requires a fear of harm on the part of a PVSVIA plaintiff be a reasonable fear, and not
simply a subjective claim that plaintiff is fearful of seeing defendant.”); Concurring and
Dissenting Opinion at 6. While M.D. argues at length in his brief that the Commonwealth
would be better served by a law that incorporates an objective, reasonable-person
standard, the fact remains that this Court is not permitted to revise or improve upon
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unambiguous statutory language. 1 Pa.C.S. § 1921(b) (“When the words of a statute are
clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext
of pursuing its spirit.”). And there is simply no textual support for the conclusion that a
PVSVIA plaintiff’s fear of harm must be analyzed using an objective, reasonable-person
standard.13
Furthermore, even if the PVSVIA were somehow ambiguous regarding whether a
plaintiff’s subjective fear alone can constitute a continued risk of harm, we would still reject
M.D.’s argument that the statute turns on whether the defendant intends to harm or
intimidate the plaintiff. The PVSVIA exists specifically to protect victims of sexual abuse
from future interactions with their assailants, which is why the General Assembly explicitly
stated in the law’s “findings and purpose” section that “[v]ictims of sexual violence and
intimidation desire safety and protection from future interactions with their offender,
regardless of whether they seek criminal prosecution.” 42 Pa.C.S. § 62A02(5) (emphasis
added). There is absolutely no indication, implicit or explicit, that the General Assembly
13 The Concurring and Dissenting Opinion warns that, if its “reasonableness” overlay
is not judicially engrafted onto the statute, then “virtually every plaintiff” will be entitled to
a final protective order under the PVSVIA. The Concurring and Dissenting Opinion is
correct only if “virtually every plaintiff” means every plaintiff who both asserts that she is
a victim of sexual violence as defined in the Act and convinces a fact-finder (by a
preponderance of the evidence) that she risks ongoing harm from encountering the
defendant. If, however, the Concurring and Dissenting Opinion is suggesting that the
PVSVIA, as actually written, imposes an illusory burden on those petitioning for protective
orders, that is plainly incorrect. 42 Pa.C.S. § 62A06(a)(2) (providing that plaintiffs must
“prove by preponderance of the evidence that the plaintiff or another individual, as
appropriate, is at a continued risk of harm from the defendant”). Furthermore, even if one
believes that the standard for entering final PVSVIA orders is too low, this Court is not
empowered to modify the General Assembly’s chosen standard under the guise of
statutory interpretation.
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intended for the issuance of protective orders to depend upon whether the defendant
intends to harm the plaintiff.14
In sum, we conclude that petitions filed under the PVSVIA are subject to the six-
year catch-all statute of limitations. We also hold that the PVSVIA’s continued risk of
harm element does not require trial courts to evaluate the reasonableness of the plaintiff’s
mental and emotional reaction when she encounters the defendant. 15 Accordingly, we
affirm the order of the Superior Court.
14 The Concurring and Dissenting Opinion also contends that our decision declining
to read into the PVSVIA an objective, reasonable-person standard renders the
“preponderance standard of proof under the PVSVIA . . . a nullity.” Concurring and
Dissenting Opinion at 6 (quoting Brief for M.D. at 50). Not so. As with any statute, the
PVSVIA’s standard of proof merely tells us how compelling the evidence must be to
satisfy the statute’s enumerated elements. The Concurring and Dissenting Opinion, on
the other hand, would use the preponderance standard to add an additional element not
present in the PVSVIA: a requirement that the plaintiff’s fear of harm “must be reasonable,
subject to an objective determination by the court[.]” Id. (quoting Brief for M.D. at 50).
The Concurring and Dissenting Opinion cites no legal authority for its innovative
interpretation.
15 In a somewhat confusing argument that spans only two pages, M.D. claims that
interpreting the PVSVIA as written would be unconstitutional. M.D. baldly asserts that the
PVSVIA’s risk-of-harm standard violates his rights to substantive and procedural due
process under both the Fifth and Fourteenth Amendments to the United States
Constitution. He also contends that the panel’s interpretation below violates “Article I of
the Pennsylvania Constitution,” Brief for M.D. at 61, though it is not entirely clear which
of the discrete rights enumerated in Article I he is referencing. M.D. cites only In re
Fortieth Statewide Investigating Grand Jury, 190 A.3d 560 (Pa. 2018), which held that the
right to protect one’s own reputation cannot be impaired “absent the affordance of . . . a
meaningful opportunity to be heard[.]” Id. at 578.
In terms of procedural due process, M.D. does not explain why the PVSVIA’s
statutory notice-and-hearing procedure is constitutionally insufficient. See 42 Pa.C.S.
§ 62A06 (relating to notice and hearings). And M.D.’s substantive due process argument
similarly is lacking. He does not opine on the level of scrutiny that applies to his claim,
nor does he cite a single substantive due process decision from any court. In light of
these many briefing deficiencies, we conclude that M.D.’s constitutional arguments are
waived given his failure to develop them in a fashion that would enable our review. See
Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009); Pa.R.A.P. 2119(a) (providing
that the argument section of an appellate brief shall include discussion and citation of
pertinent authorities).
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Chief Justice Baer and Justices Todd, Donohue and Dougherty join the opinion.
Justice Saylor files a concurring opinion.
Justice Mundy files a concurring and dissenting opinion.
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