Weatherholtz, K. v. McKelvey, D. ( 2023 )

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2023 PA Super 215KRISTIN ALLYN WEATHERHOLTZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DYLAN JACOB MCKELVEY :
:
Appellant : No. 190 MDA 2023
Appeal from the Order Entered January 17, 2023
In the Court of Common Pleas of Lebanon County Civil Division at No(s):
2018-40012
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
OPINION BY BOWES, J.: FILED: OCTOBER 25, 2023
Dylan Jacob McKelvey appeals from the final protection order entered
on the petition filed by Kristin Allyn Weatherholtz (“Appellee”) pursuant to the
Protection of Victims of Sexual Violence or Intimidation Act (“PVSVIA”), 42
Pa.C.S. §§ 62A01-62A20. For the reasons that follow, we reverse the order
and dismiss the petition with prejudice.
We glean from the record that in 2009 or 2010, when Appellee was
fourteen years old, she was the victim of unspecified sexual offenses
committed by Appellant. He entered a guilty plea and, as part of his sentence,
was required to have no contact with Appellee.1 In January 2018, Appellant
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1 The certified record does not reveal the underlying offenses, their grading,
or the particulars of Appellant’s criminal sentence. The trial court indicates in
its opinion that Appellant was convicted of sexual abuse of children pursuant
to 18 Pa.C.S. § 6312(b), but the criminal charges and judgment of sentence
do not appear within the certified record.
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attempted by numerous means to contact Appellee. She filed a PVSVIA
petition and the court entered a three-year protective order.
Appellee took no steps to seek an extension of the order, and therefore
it expired by its terms on January 18, 2021. Thereafter, on June 6, 2022,
Appellee encountered Appellant at a flea market. Appellant approached within
twenty feet of her, made eye contact, smiled, waved, and then fled after a
few seconds. Based upon this interaction, Appellee experienced a new onset
of anxiety and fear, prompting her to file the petition sub judice. The court
held an evidentiary hearing, during which Appellant admitted that he was at
the flea market but denied seeing Appellee and maintained that it had been
years since he had any contact with her. Additionally, he argued that the trial
court was barred from entering a protective order because the statute of
limitations had expired. Following the hearing, the court entered a new three-
year protective order.2
This timely filed notice of appeal followed. Both Appellant and the trial
court complied with Pa.R.A.P. 1925. On appeal, Appellant raises the following
issues for our consideration:
A. Did the lower court err by denying [Appellant’s] motion to
dismiss that cited the six-year statute of limitations applicable
to the [PVSVIA]?
B. Did the lower court err by holding that the statute of limitations
for the PVSVIA does not begin to run from the date of the act
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2 Appellant filed a post-trial motion for relief, which the trial court properly
dismissed pursuant to Pa.R.C.P. 1957(b) (“No motion for post-trial relief may
be filed to the final order” in an PVSVIA action.).
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of sexual violence or intimidation committed by the
[Appellant], but rather from the date of the act or
circumstances that demonstrates a continued risk of harm to
the victim?
C. Did the lower court err by holding that the Plaintiff’s right to
relief under the PVSVIA arose when [Appellant] committed an
act of harassment and/or intimidation on or about June 6,
2022, despite the fact that the underlying act of sexual violence
or intimidation occurred more than six years prior to the filing
of the petition?
D. Did the lower court err in granting [Appellee’s] request for a
protective order under the PVSVIA despite [Appellee’s] failure
to provide evidence that she was a victim of sexual violence or
intimidation of the type specifically enumerated in the
definitions of those terms in 42 Pa.C.S. § 62A03?
E. Did the lower court err by finding that [Appellant’s] alleged
action of smiling at [Appellee] and waving constituted an act of
harassment and/or intimidation that was sufficient to trigger a
right to relief under the PVSVIA?
F. Did the lower court improperly grant an extension of the prior
protective order that expired over a year and a half prior to the
petition for relief?
Appellant’s brief at 6-8 (cleaned up).
At the outset, we observe that the PVSVIA provides for the “protection
of victims of sexual violence or intimidation regardless of a preexisting
relationship.” E.A.M. v. A.M.D. III, 173 A.3d 313, 316 (Pa.Super. 2017)
(cleaned up). On appellate review, “we employ the identical standard of
review that we use to review the propriety of an order entered pursuant to
the Act’s seasoned counterpart addressing the protection of victims of physical
or sexual abuse by family members, i.e., the Protection From Abuse Act
(‘PFA’)[.]” Id. (cleaned up).
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Applying that standard, “we must determine whether the evidence, in
the light most favorable to petitioner and granting [her] the benefit of all
reasonable inferences, was sufficient to sustain the trial court’s determination
. . . by the preponderance of the evidence.” S.W. v. S.F., 196 A.3d 224, 228
(Pa.Super. 2018) (citation omitted). Assessing the “[c]redibility of witnesses
and the weight accorded their testimony is within the exclusive province of
the [trial court] as fact finder.” Mescanti v. Mescanti, 956 A.2d 1017, 1020
(Pa.Super. 2008) (citation omitted).
Appellant’s first three issues assail the trial court’s rejection of his
statute of limitations claim. When this Court is tasked with determining “the
application of the statute of limitations[,]” we are presented with “a question
of law” for which our standard of review is de novo. K.A.R. v. T.G.L., 107
A.3d 770, 775 (Pa.Super. 2014). Our Supreme Court has held that petitions
seeking a protective order under the PVSVIA are subject to the six-year catch-
all statute of limitations pursuant to 42 Pa.C.S. § 5527(b). See K.N.B. v.
M.D., 259 A.3d 341, 344 (Pa. 2021). “Statutes of limitation begin to run when
a claim accrues.” Kornfeind v. New Werner Holding Co., 280 A.3d 918,
928 (Pa. 2022) (cleaned up). “Normally, a cause of action accrues when an
injury is inflicted. Thus, the clock begins to run as soon as the right to institute
and maintain a suit arises. . . . If the plaintiff fails to file before the clock
expires, the statute of limitations bars the suit.” Rice v. Diocese of Altoona-
Johnstown, 255 A.3d 237, 246–47 (Pa. 2021) (cleaned up).
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The PVSVIA provides victims of sexual violence and intimidation “with a
civil remedy requiring the offender to stay away from the victim, as well as
other appropriate relief.” 42 Pa.C.S. § 62A02. Individuals seeking relief under
the PVSVIA must “fil[e] a petition with the court alleging the need for
protection from the defendant with respect to sexual violence or intimidation.”
42 Pa.C.S. § 62A05(a). Thereafter, a hearing shall be conducted as follows:
(a) General rule.--Within ten business days of the filing of a
petition under this chapter, a hearing shall be held before the
court where the 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.
(a.1) Right to counsel.--The court shall, at the time the
defendant is given notice of the hearing, advise the defendant of
the right to be represented by counsel. The notice shall be printed
and delivered in a manner that easily attracts attention to its
contents.
(b) Temporary orders.--If a plaintiff seeks a temporary order
for protection from an immediate and present danger, the court
shall conduct an ex parte proceeding. The court may enter a
temporary order as it deems necessary to protect the plaintiff or
another individual, as appropriate, when it finds the plaintiff or
another individual is in immediate and present danger from the
defendant. The temporary order shall remain in effect until
modified or terminated by the court after notice and hearing.
(c) Continued hearings.--If a hearing under subsection (a) is
continued and no temporary order is issued, the court may make
ex parte temporary orders under subsection (b), as it deems
necessary.
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42 Pa.C.S. § 62A06.
As it pertains to the first prong that a petitioner must assert at a hearing,
the statute defines intimidation, sexual violence, and victim thusly:
“Intimidation.” Conduct constituting a crime under either of the
following provisions between persons who are not family or
household members:
18 Pa.C.S. § 2709(a)(4), (5), (6) or (7) (relating to
harassment) where the conduct is committed by a person
18 years of age or older against a person under 18 years of
age.
18 Pa.C.S. § 2709.1 (relating to stalking) where the conduct
is committed by a person 18 years of age or older against a
person under 18 years of age.
....
“Sexual violence.” Conduct constituting a crime under any of
the following provisions between persons who are not family or
household members:
18 Pa.C.S. Ch. 31 (relating to sexual offenses), except 18
Pa.C.S. §§ 3129 (relating to sexual intercourse with animal)
and 3130 (relating to conduct relating to sex offenders).
18 Pa.C.S. § 4304 (relating to endangering welfare of
children) if the offense involved sexual contact with the
victim.
18 Pa.C.S. § 6301(a)(1)(ii) (relating to corruption of
minors).
18 Pa.C.S. § 6312(b) (relating to sexual abuse of children).
18 Pa.C.S. § 6318 (relating to unlawful contact with minor).
18 Pa.C.S. § 6320 (relating to sexual exploitation of
children).
....
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“Victim.” A person who is the victim of sexual violence or
intimidation.
42 Pa.C.S. § 62A03.
Finally, the statute outlines the following permissible avenues for relief
should a petitioner prevail at the hearing:
(a) Order or consent agreement.--The court may issue an
order or approve a consent agreement to protect the plaintiff or
another individual, as appropriate, from the defendant.
(b) General rule.--An order or a consent agreement may
include:
(1) Prohibiting the defendant from having any contact with
the victim, including, but not limited to, restraining the
defendant from entering the victim’s residence, place of
employment, business or school. This may include
prohibiting indirect contact through third parties and also
prohibiting direct or indirect contact with other designated
persons.
(2) Granting any other appropriate relief sought by the
plaintiff.
(c) Duration and amendment of order or agreement.--A
protection order or an approved consent agreement shall be for a
fixed period of time not to exceed 36 months. The court may
amend its order or agreement at any time upon subsequent
petition filed by either party.
(d) Extension of protection orders.—
(1) An extension of an order may be granted:
(i) Where the court, after a duly filed petition, notice
to the defendant and a hearing, in accordance with
the procedures set forth in sections 62A05 (relating to
commencement of proceedings) and 62A06 (relating
to hearings), finds that the extension is necessary
because the defendant engaged in one or more acts
or finds some other circumstances that, in the
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discretion of the court, demonstrate a continued risk
of harm to the victim.
(ii) When a contempt petition or charge has been filed
with the court or, in a county of the first class, a
hearing officer, but the hearing has not occurred
before the expiration of the protection order, the order
shall be extended, at a minimum, until the disposition
of the contempt petition.
(2) Service of an extended order shall be made in
accordance with section 62A05(d).
(3) There shall be no limitation on the number of extensions
that may be granted.
(e) Notice.--Notice shall be given to the defendant stating that
violations of the order will subject the defendant to arrest under
section 62A12 (relating to arrest for violation of order) or
contempt of court under section 62A14 (relating to contempt for
violation of order).
(f) Incarceration.--When the defendant is or was incarcerated
and will be released from custody in the next 90 days or has been
released from custody within the past 90 days, a plaintiff does not
need to show that the defendant engaged in one or more acts that
indicate a continued risk of harm to the victim in order to obtain
an extension or a subsequent protection order under this chapter.
(g) Identifying information.--Any order issued under this
chapter shall, when furnished by either party, specify the Social
Security number and date of birth of the defendant.
42 Pa.C.S. § 62A07.
This Court has identified two prongs to a cause of action under the
PVSVIA:
Pursuant to § 62A06(a)(1) and (2), in order to prevail on a PVSVIA
claim and to achieve the desired result of a final no-contact order,
a petitioner must[, at the mandatory hearing,] (1) assert that the
plaintiff or another individual, as appropriate, is a victim of sexual
violence or intimidation committed by the defendant; and (2)
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prove by preponderance of the evidence that the plaintiff or
another individual, as appropriate, is at a continued risk of harm
from the defendant.
E.A.M., supra at 319 (cleaned up). Thus, we must determine which is the
pertinent prong for determining when the cause of action accrues pursuant to
the six-year statute of limitations.
Here, the trial court answered this question by relying on the second
prong, i.e., the date of the conduct evincing a continued risk of harm.
Therefore, it held that Appellee’s right to relief under the PVSVIA arose on
June 6, 2022, when Appellant confronted Appellee at the flea market, and
therefore the petition was not barred by the statute of limitations. See Trial
Court Opinion, 3/31/23, at 7. The trial court and Appellee utilize the June
2022 date because they contend that a plaintiff does not have a cause of
action under the PVSVIA until a defendant commits an act evidencing a
continued risk of harm. See id.; Appellee’s brief at 11.
Appellant contests this conclusion and asserts that the statute of
limitations expired before Appellee filed her petition. He argues that: (1) a
petition under the PVSVIA is subject to a six-year statute of limitations; (2)
the statute begins to run from the date of an act constituting sexual violence
or intimidation; and (3) because his conduct on June 6, 2022 did not amount
to sexual violence or intimidation as defined by the PVSVIA, the court should
have considered the 2009 or 2010 acts for when the cause of action accrued.
See Appellant’s brief at 19-23.
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Simply put, Appellant’s argument is that the statute of limitations is
premised upon the first prong of § 62A06(a), i.e., the cause of action accrues
on the date the petitioner became a victim of sexual violence or intimidation,
whereas the trial court and Appellee focus on the second prong, i.e., the most
recent date demonstrating that the defendant poses a continued risk of harm
to the petitioner.
Notably, there is scant case law concerning the PVSVIA, none of which
expressly addresses this precise issue. Regardless, we determine that our
Supreme Court’s decision in K.N.B. controls. In that case, K.N.B. alleged that
the defendant, a fellow college student, sexually assaulted her in September
2015. She did not report the assault to police in 2015. However, after seeing
the defendant at a Walmart in 2018, at which time he was no longer a student,
she reported the assault and petitioned the court for a protective order
pursuant to the PVSVIA.
The defendant argued that K.N.B.’s 2018 petition was barred by the
two-year statute of limitations because the initial sexual assault occurred in
2015, more than two years before the petition was filed. See K.N.B., supra
at 344-45. The trial court rejected the defendant’s argument, concluding that
six-year catch-all limitation applied and had not run, and entered a protective
order. Id. at 345. On appeal to this Court, we again rejected the defendant’s
argument and affirmed the protective order. Id. at 346-47. The defendant
petitioned for allowance of appeal with our Supreme Court, again raising the
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same arguments. In line with the trial court and this Court, after concluding
that the two-year statute of limitations did not apply, but rather the six-year
catch-all, the High Court held that K.N.B.’s petition was not barred by the
statute of limitations. Id. at 350.
In so holding, the Supreme Court did not explicitly state that the first
prong was the relevant focal point for statute of limitations purposes. Indeed,
the focus of its analysis was on whether the two-year or six-year statute of
limitations period applied, not when the period began to run. However, its
holding implies that the statute began to run at the time of the underlying
sexual violence or intimidation. To wit, the defendant’s statute of limitations
argument was premised on the date of the initial sexual assault, not the 2018
Walmart encounter giving rise to the PVSVIA petition. In determining the
appropriate limitations period, the High Court did not identify a starting date
different from the initial sexual assault. See K.N.B. v. M.D., 227 A.3d 918,
923 (Pa.Super. 2020) (setting forth that the defendant argued that “K.N.B.’s
petition was untimely because the petition was subject to the two-year time
limitation and it was filed more than two years after the alleged assault”),
affirmed by K.N.B., supra.
Moreover, if the claim did not accrue until K.N.B. encountered the
defendant at a Walmart in 2018, then the applicability of a two-year versus
six-year statute of limitations would have been of no moment as the claim
would not have been barred under either limitation period. As the Supreme
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Court believed it critical to determine the duration of the statute of limitations
period before determining whether the petition was barred and did not correct
the defendant’s use of the initial sexual assault date for determining whether
the limitations period had passed, we infer that the Court construed the
accrual date for purposes of the statute of limitations based upon the conduct
underlying the first prong.
With respect to the first prong, “the plaintiff must assert that he or she
was a victim of [sexual violence or] intimidation committed by the defendant
and the court must find the assertion credible.” Pietz v. Hadrych, 293 A.3d
645, 2023 WL 2253325, at *3 (Pa.Super. 2023) (non-precedential decision)
(cleaned up). In the trial court’s Rule 1925(a) opinion, it noted that Appellee
was the victim of sexual offenses committed by Appellant in 2009 or 2010,
when Appellee was fourteen years old. The only alleged conduct potentially
amounting to sexual violence occurred at that time in 2009 or 2010, well
before the six years preceding the 2022 petition. Similarly, any act of
intimidation could have only happened in 2014, at the latest, as after such
time Appellee would no longer have been under eighteen years of age. As the
petition in this case was filed in 2022, no act of intimidation could have
occurred within the statute of limitations.
Critically, Appellant’s conduct at the flea market in 2022 did not entail
sexual violence, and while Appellee certainly may have felt intimidated,
Appellant’s conduct could not have constituted intimidation as defined by the
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statute because Appellee was not under eighteen years of age. Moreover,
even if his conduct violated the no-contact provision of Appellant’s criminal
sentence, such a violation was not introduced into the certified record, and,
even if it had been, would still not meet the statutory definition of sexual
violence or intimidation. Thus, Appellee’s 2022 petition was filed after the six-
year statute of limitations had run and is barred by the statute of limitations.
Appellee asserts that because defendants who are convicted of a crime
of sexual violence “are in jail for more than [six] years,” basing the statute of
limitations upon the first prong “would render protections of this Act utterly
useless in most cases.” Appellee’s brief at 8. We understand Appellee’s
frustrations with such an interpretation, as it puts her out of court, but we do
not believe that it renders the PVSVIA useless. Plaintiffs may pursue criminal
charges against a defendant and a defendant may be ordered to have no
contact with the victim as part of a sentence, as was apparently the case here.
Simultaneously, or within six years, a plaintiff may also seek a protective order
under the PVSVIA. If a defendant is in jail at the time, the plaintiff need not
prove an act demonstrating a continued risk of harm to obtain a protective
order or an extension of an existing order. See 42 Pa.C.S. § 62A07(f). After
obtaining the initial protective order, a plaintiff may seek an unlimited number
of extensions so long as the court “finds that the extension is necessary
because the defendant engaged in one or more acts or finds some other
circumstances that, in the discretion of the court, demonstrate a
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continued risk of harm to the victim.” 42 Pa.C.S. § 62A07(d)(1)(i)
(emphasis added). Thus, while the PVSVIA’s protections may not be as broad
as Appellee would like,3 they still offer significant protection to victims whose
offenders serve jail time or continue to pose a risk of harm for an extended
period of time.
Based on the foregoing, we reverse the protective order. In light of our
disposition, we decline to address Appellant’s remaining issues.
Order reversed. Petition dismissed with prejudice.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/25/2023
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3 To that end, we note that nothing in the PVSVIA indicates that its protections
are meant to be applied retroactively to acts of sexual violence or intimidation
committed prior to its enactment in 2015. See 1 Pa.C.S. § 1926 (“No statute
shall be construed to be retroactive unless clearly and manifestly so intended
by the General Assembly.”).
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