Opinion
No. 20 WAP 2020
09-22-2021
K.N.B., Appellee v. M.D., Appellant
Suzanne V. Estrella, Esq., Department of Human Services, for Amicus Curiae Pennsylvania Coalition Against Rape. Blair Harry Hindman, Esq., Blair Hindman Law Firm, Clarion, for Appellant M.D. Eric G. Hackenberg, Esq., Laurel Legal Services, Inc., for Appellee K.N.B.
Suzanne V. Estrella, Esq., Department of Human Services, for Amicus Curiae Pennsylvania Coalition Against Rape.
Blair Harry Hindman, Esq., Blair Hindman Law Firm, Clarion, for Appellant M.D.
Eric G. Hackenberg, Esq., Laurel Legal Services, Inc., for Appellee K.N.B.
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE WECHT
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") 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.
See 42 Pa.C.S. §§ 62A01 -62A20.
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.
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 Order 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:
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.
(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. 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-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.
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).
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 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.
* * *
(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.
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.
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. The court therefore concluded that K.N.B.’s petition, which she filed twenty-nine months after the alleged assault, was timely.
See 42 Pa.C.S. § 5527(b).
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 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 , 609 Pa. 108, 15 A.3d 333, 335 (2011).
Our interpretation of the PVSVIA, and the Judicial Code as a whole, is governed by the Statutory Construction Act. 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. , 632 Pa. 583, 121 A.3d 964, 972 (2015). Accordingly, "[w]hen 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." 1 Pa.C.S. § 1921(b).
See 1 Pa.C.S. §§ 1501 -1991.
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. 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).
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").
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 requested that the trial court award compensation "for the reasonable financial losses suffered as a result of [M.D.’s] abuse," 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.
SVPO Petition at ¶ 10.
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 353. 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. And similar language appears in other Pennsylvania statutes, some of which explicitly permit plaintiffs to obtain monetary damages notwithstanding the "other appropriate relief" catch all. 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. 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.").
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).
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).
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[.]").
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. Here, however, the 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. 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 ., 568 Pa. 601, 798 A.2d 1277, 1283 (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").
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 ., 568 Pa. 601, 798 A.2d 1277, 1282 (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 civil penalty or forfeiture’ encompasses statutory civil actions that are penal, deterrent, punitive, and non-compensatory in nature.").
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).
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 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.
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 358. 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 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.
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.
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 intended for the issuance of protective orders to depend upon whether the defendant intends to harm the plaintiff.
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 358 (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.
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. Accordingly, we affirm the order of the Superior Court.
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 , 647 Pa. 489, 190 A.3d 560 (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 , 600 Pa. 392, 966 A.2d 560, 566 (2009) ; Pa.R.A.P. 2119(a) (providing that the argument section of an appellate brief shall include discussion and citation of pertinent authorities).
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.
JUSTICE SAYLOR, concurring
I agree that the six-year statute of limitations applies to petitions filed under the Protection of Victims of Sexual Violence or Intimidation Act (the "Act"), and that there is no requirement, statutory or otherwise, that a petitioner's claim of intimidation and/or ongoing fear be objectively reasonable. Thus, I am aligned with the Court's holding that the Superior Court's order should be affirmed. With that said, my analysis as to these issues differs modestly from that of the majority.
Section 5524 of the Judicial Code applies the two-year period to:
(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.
* * *
(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(2), (7).
If the Act facially prohibited the recovery of monetary damages stemming from the underlying offense, I would agree that K.N.B.’s request for damages was in error. The difficulty, to my mind, is that the Act expressly permits recovery of "any other appropriate relief sought by the plaintiff." 42 Pa.C.S. § 62A07(b)(1), (2) ; see also id . § 62A02(6) ("This chapter provides the victim with a civil remedy requiring the offender to stay away from the victim, as well as other appropriate relief ." (emphasis added)).
In the present case, K.N.B. requested that the court direct M.D. to "pay Plaintiff for the reasonable financial losses suffered as the result of the abuse, to be determined at the hearing" on the petition. Petition at 2, ¶10(b). The court did not grant the request, but that doesn't mean that no other court would be inclined to award similar costs upon adequate proof. Under the majority's holding, however, no victim can ever recover monetary damages. Stated differently, K.N.B. requested "other" relief, and the majority implicitly concludes that such compensation is not "appropriate" relief. I am unable to discern the basis for such determination.
At the hearing, K.N.B. testified that she had to receive therapy to aid in recovering from the abuse in question. See N.T., June 15, 2018, at 19, 27, 35-36. Assuming there was a cost to the therapy, K.N.B. was evidently asking to be reimbursed for that as well as any other costs she incurred which were attributable to the abuse.
Nevertheless, as E.A.M. is a Superior Court case, its holding is not binding on this Court.
I recognize that allowing for compensatory damages absent a jury trial may pose constitutional difficulties, see Pa. Const. art. I, § 6 ; Bruckshaw v. Frankford Hosp. of City of Phila. , 619 Pa. 135, 147, 58 A.3d 102, 109 (2012) ("The right to a jury trial in a civil action is a fundamental aspect of our system of law."), and that the Act may be susceptible of a limiting construction whereby "appropriate" relief excludes such damages. See generally London v. Zoning Bd. of Phila. , 173 A.3d 847 (Pa. Super. 2017) (quoting Conchatta Inc. v. Miller , 458 F.3d 258, 263 (3d Cir. 2006) ; Virginia v. Am. Booksellers Ass'n , 484 U.S. 383, 397, 108 S. Ct. 636, 645 (1988) ). However, no such constitutional issue is presently before the Court.
A review of the hearing transcript reveals the trial court grappled with what standard to apply.
So I said a few minutes ago that maybe his intent on wanting to have contact with her isn't the real question, but it's her reaction to it, but as I think about it, that's not really correct because in assessing whether there's a continuing risk of harm, I think I do have to take into account what evidence there is of defendant's intent and actions in actually trying to have contact with her in terms of assessing whether there is a risk or not.
If it's just entirely haphazard or unexpected or random or unintentional contact, yes, I'm not doubting that there's an emotional reaction on the part of [K.N.B.].
I'm not doubting that, but if the defendant's not making any - - taking any steps positively in any way to try to maintain any kind of contact with her, isn't that a factor ... of whether there's a continuing risk?
I mean, from the testimony, it sure seems to me that Wal-Mart, you know, walking the dog, Wal-Mart, seeing him around campus, occasionally at a party, I mean he came up to her at a party and told a joke and wanted to fist bump her, so I mean it was more of a friendly exchange, according to her testimony.
N.T., 6/15/18, at 98-99.
Still, I agree with the result reached by the majority. I find paragraph (7) of the two-year statute inapplicable because a petition under the Act is not based on alleged tortious conduct, but rather, on criminal conduct. This is evident because, in a petition under the Act the plaintiff must assert that he or she is a victim of sexual violence or intimidation, see 42 Pa.C.S. § 62A06(a)(1), and these terms are defined exclusively in criminal, rather than civil, terms. See id . § 62A03 (defining "intimidation" and "sexual violence," as "conduct constituting a crime under" various aspects of the Crimes Code). While in practical terms such crimes will often involve tortious conduct, the point is that the basis for the request for relief under the Act is alleged criminal, not tortious, behavior (together with an ongoing risk of harm, see id . § 62A06(a)(2) ).
Paragraph (2) of the two-year statute presents a closer question, in my view. Under that paragraph, the two-year period applies to actions to recover damages for injuries to the person cause by the "unlawful violence ... of another." 42 Pa.C.S. § 5524(2). While M.D.’s alleged act of sexually assaulting K.N.B. may certainly be characterized as "unlawful violence," the petition is at its core a request for protective relief, and any claim for damages is at most ancillary. See id . § 62A07(a), (b) ; see also id . § 62A03 (defining "order" in protective, rather than compensatory, terms); id . § 62A05(a) (reflecting that relief is based on the need for protection).
In summary, then, I agree with the majority that the two-year period of Section 5524 does not apply, but I would not base this ruling on the premise that the Act affirmatively rules out the recovery of monetary damages.
Turning to the second issue – whether the plaintiff's fear of continuing harm must be objectively reasonable – I find some salience in Appellant's argument that due process limitations play a role in the analysis in view of the consequences for the defendant stemming from the issuance of an order under the Act. Appellant notes that such an order is likely to have an adverse impact on the defendant's reputational rights, which this Court has deemed to be fundamental, especially as such orders are lodged in a statewide registry. He also argues that even an unintentional violation of an order, such as could occur from being in the vicinity of the plaintiff by chance, can give rise to the possibility of arrest and confinement for up to six months, as well as a fine. See Brief for Appellant at 22-24 & n.7, 56-57, 61-62; 42 Pa.C.S. §§ 62A12 - 62A14 ; cf. N.T., June 15, 2018, at 96 (reflecting the court's finding that most of Appellant's harmful post-abuse contacts with K.N.B. were unintentional).
Based on the above, Appellant posits that his "freedom of movement, and right to reputation [are] impacted, without meaningful substantive and procedural due process protections[.]" Brief for Appellant at 25. In this respect, Appellant forwards that, under a subjective standard, "orders will be entered virtually pro forma , as nearly any claim of anxiety or fear by a plaintiff will require entry of a protection order." Id .
These types of difficulties should not be lightly dismissed. It is true that, unlike with protection-from-abuse proceedings, the General Assembly did not state that, as a prerequisite to relief the plaintiff must have a "reasonable" fear of continuing harm from the defendant. See Majority Opinion at 351; see also id . (noting the Act "requires only an assertion of sexual violence or intimidation combined with proof that the plaintiff ... is at a continued risk of harm from the defendant" (internal quotation marks and citation omitted)). As this case illustrates, the harm can be in the form of anxiety or panic associated with seeing the defendant at a distance, even where no other contact between the parties is established, and regardless of whether the defendant intends to ever contact the plaintiff again.
But given that the Act only requires a bare "assert[ion]" of criminality, 42 Pa.C.S. § 62A06(a)(1), complications can arise. For example, in a case of mistaken identity – e.g. , where the defendant's appearance is similar to that of the perpetrator – the defendant may be able to prove convincingly (for example, by way of alibi) that he is not the person who abused the plaintiff. Alternatively, the defendant may be able to prove that his contact with the plaintiff did not amount to sexual violence or intimidation. In either case, the plaintiff may nonetheless have a subjective fear of the defendant, no matter how unreasonable; as noted, moreover, this fear, combined with a bare assertion of criminality, is sufficient for an order to issue adversely affecting the defendant's rights.
In my view, these features of the enactment give rise to substantial doubts about whether it requires a process that can withstand constitutional scrutiny. A reasonable argument can be made that allowing the imposition of such consequences upon a defendant absent proof of some actual misconduct fails to comport with the fundamental fairness required of all government actions. See Penn. DOT v. Middaugh , ––– Pa. ––––, ––––, 244 A.3d 426, 435 (2021) (explaining that the Due Process Clause requires the government to treat all individuals with basic fairness). But cf . Majority Opinion at 352 n.15 (suggesting that Appellant's due process contention is meritless because he had notice and an opportunity to be heard). That a mere assertion, without proof, of criminality is sufficient under paragraph (a)(1) also runs counter to the general precept that the party asserting the affirmative of a particular issue bears the initial burden of proof. See 500 James Hance Court v. Pa. Prevailing Wage Appeals Bd. , 613 Pa. 238, 273 n.28, 33 A.3d 555, 576 n.28 (2011) ; cf . Brief for Appellant at 57 (proposing that, because an unsubstantiated assertion of criminality is sufficient to satisfy the first prong for relief, courts should protect due process by requiring proof of objective harm).
It would be tempting to ameliorate such difficulties by imposing upon the statutory text a limiting construction whereby the underlying sexual violence or intimidation must be proved by at least a preponderance of the evidence. However, the Act is not reasonably susceptible of such construction because it also expressly states that the plaintiff must "prove [harm] by preponderance of the evidence," see id . § 62A06(a)(2) ; cf . 23 Pa.C.S. § 6107(a) (as part of the Protection From Abuse Act, stating that the plaintiff must prove abuse by a preponderance of the evidence), thereby suggesting that if the General Assembly had intended to require proof concerning the predicate act of sexual violence or intimidation, it would have so stated. Accord A.M.D. v. T.A.B. , 178 A.3d 889, 894 (Pa. Super. 2018) ; E.A.M. v. A.M.D. III , 173 A.3d 313, 319 (Pa. Super. 2017).
With that said, I would not find that Appellant is ultimately entitled to relief on due process grounds. For one, the questions this Court accepted for review do not fairly subsume the issue of whether due process is offended because the predicate offense need only be asserted and not proved. Also, that question is not salient in the present matter in any event. The common pleas court credited K.N.B.’s extensive hearing testimony over that of Appellant, and it made a record finding by a preponderance that Appellant committed a predicate sex offense. See N.T., June 15, 2018, at 106-07; K.N.B. v. M.D. , No. 155 CD 2018, slip op . at 8-9 (C.P. Clarion Aug. 29, 2018).
The issues on which we granted review are:
(1) ... whether an action under the [Act] is governed by the six-year catch-all statute of limitations, as the Superior Court held, rather than the civil two-year statute of limitations applicable to torts?
(2) ... whether the continuing risk of harm required for a protection order under the [Act] must be reasonable and not solely the plaintiff's subjective and unfounded fear of the [defendant]?
K.N.B. v. M.D. , ––– Pa. ––––, 239 A.3d 14 (2020) (per curiam ).
The full text of the prohibited conduct under the order states:
Defendant shall not abuse, harass, stalk or threaten any of the above persons in any place where they might be found.
Defendant shall not contact Plaintiff, or any other person protected under this order, by telephone or by any other means, including through third persons.
SVPO, 2/15/18.
In view of the above, however, it remains an open question whether an order can issue, consistent with due process norms, based upon a mere assertion of criminality combined with proof of harm, where the harm is assessed on a subjective basis.
JUSTICE MUNDY, concurring and dissenting
For the reasons set forth in the majority, I agree the six-year catch-all statute of limitations applies and join that portion of the majority opinion. However, I dissent from the majority's resolution of the second issue because I would hold that a plaintiff must demonstrate, by a preponderance of the evidence, they are "at a continued risk of harm from the defendant." 42 Pa.C.S. § 62A06(a).
Throughout the duration of this case, each of the courts has struggled to determine the applicable standard for evaluating whether K.N.B. was at a continued risk of harm from Appellant. Likewise, Appellant has challenged each court's decision that K.N.B.’s subjective fear is all that is required. The trial court made no findings that Appellant posed a continued risk of harm to K.N.B. such that the entry of the SVPO was needed for her protection. Similarly, the majority does little to clarify the appropriate standard in making this determination, and seemingly approves such orders in circumstances where there is no evidence to support a continued risk of harm from defendant aside from the plaintiff's subjective fear of defendant.
As E.A.M. v. A.M.D. III , 173 A.3d 313 (Pa. Super. 2017), is the sole and seminal case relied upon by each of the courts in this matter, I believe a closer review of the case is essential.1 In E.A.M. , Mother, E.A.M., petitioned for a Sexual Violence Protective Order (SVPO) on behalf of her minor daughter, M.M. M.M. had a sexual encounter with the appellant which was reported to police. A juvenile delinquency petition was filed but ultimately dismissed. Thereafter, E.A.M. filed a petition for an SVPO on behalf of her daughter asserting the appellant who was no longer enrolled at M.M.’s high school was appearing at school activities, staring at M.M., and trying to speak with her. E.A.M. , 173 A.3d at 315. M.M. informed the school that Appellant's presence at school activities made her feel unsafe, but the administration declined to address the situation because the appellant's mother was a teacher at the school, and the school endorsed his continued presence. Id. A temporary order was granted, and an evidentiary hearing was scheduled. After a hearing, a final protection order was entered, prohibiting the appellant from engaging in any contact with M.M. for three years. Id.
On appeal, the Superior Court affirmed. The court recounted the various incidents of the appellant's appearance at M.M.’s high school, noting "[t]he certified record validates M.M.’s concerns about the school's apathy." Id. at 321. Importantly, the court noted that Appellant's argument that he did not interact with M.M. at these school events "ignores the fact that his presence at the school, and the administration's decision to endorse it, are the two causes of apprehension, fear, and emotional distress which shape the harm M.M. seeks to quell with the final PVSVIA order." Id. Accordingly, the E.A.M. Court found the appellant was a continued risk to the victim and the SVPO could protect her from this additional harm.
Here, the trial court applied E.A.M. to determine the standard required to show a continued risk of harm. Trial Ct. Op., 8/29/18, at 9. The trial court noted three facts influenced the decision in E.A.M. : (1) the victim was a student at the high school and the defendant was a former student who no longer attended the school but was given permission by the school to "shadow" former teachers; (2) the victim "experienced mental or emotional harm or damage, even if the former classmate did not speak to her or make sexual advances towards her[;]" and (3) "[t]he victim testified that she was afraid the perpetrator was going to attempt to talk to her, approach her, or contact her physically and the school accommodated the perpetrator's request to visit." Id. (citing E.A.M. , 173 A.3d at 320 ).
Focusing on the second finding in E.A.M. , in this case the trial court concluded that plaintiff continued to experience mental or emotional harm or damage even if Appellant did not speak to her or make sexual advances toward her. The court additionally noted that plaintiff was afraid Appellant was going to attempt to approach her, and there was no restriction on his possible access to her. Id. at 9-10.2 The trial court made no findings in this case that Appellant had attempted to contact K.N.B., or any factual findings that Appellant was the cause of this fear, in determining a SVPO was necessary to prevent K.N.B. from being at a continued risk of harm from Appellant. See E.A.M. , 173 A.3d at 321 (the defendant's "presence at the school, and the administration's decision to endorse it, are the two causes of apprehension, fear, and emotional distress which shape the harm M.M. seeks to quell with the final PVSVIA order") (emphasis added). Nevertheless, the trial court found that plaintiff "proved by a preponderance of the evidence she was at a continued risk of harm from [Appellant]." Id. at 10.
On appeal, the Superior Court also reviewed Appellant's assertion that K.N.B. failed to prove she was at a continued risk of harm. The court noted, "[l]ittle guidance exists for trial courts regarding the applicable standard for finding a continued risk of harm. Nevertheless, we faced a situation similar to the one at hand in E.A.M. , 173 A.3d at 320." Superior Ct. Op., 1/30/20, at 15. Seemingly wholesale adopting the trial court's reasoning, the court held that Appellant's "recurring presence, when it ‘causes [the victim] ... apprehension, fear, and emotional distress,’ is sufficient evidence to demonstrate a continued risk of harm." Id. at 16. The court then concluded Appellant's presence was the cause of K.N.B.’s "apprehension, fear, and emotional distress." Id. Therefore, it concluded the trial court did not abuse its discretion in finding K.N.B. is at a continued risk of harm from Appellant. Id.
The Majority essentially accepts this same reasoning. Initially, the majority looks to the statutory language and notes the law requires "plaintiff must prove that he or she (or another individual) is ‘at a continued risk of harm from the defendant.’ " Majority Op. at 350 (citing 42 Pa.C.S. § 62A06(a) ). The majority then acknowledges that the "defendant's own intent may inform this inquiry in some cases." Id. Nevertheless, the majority comes to the conclusion that because "K.N.B. risks ongoing harm from M.D. given that his very presence triggers K.N.B.’s panic attacks[,]" "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." Id. (citing E.A.M. , 173 A.3d at 321 ). Respectfully, I disagree. Absent a finding that Appellant has done something preventable by an SVPO to cease to be a continued risk of harm to K.N.B., the plain language of Section 62A06(a) cannot be satisfied.
While E.A.M. appears to accept the idea that the plaintiff's subjective fear is enough to support a finding of continued risk of harm from the defendant, I am not persuaded that was the intent of the holding in E.A.M . The basis for affirming the final order was to prevent the appellant from continuing to appear at M.M.’s high school, particularly in light of the school's failure to act in a manner that would protect M.M. The subjective fear M.M. harbored was a result of the appellant's presence at her high school, coupled with the school's apathy towards her complaints, which was the basis for entering an order prohibiting him from being near M.M.
Instantly, the focus solely on K.N.B.’s panic attacks without regard to Appellant's conduct fails to examine whether K.N.B. proved by a preponderance of the evidence that she is at a continued risk of harm from him. The record indicates that Appellant has not attempted to make any contact with K.N.B. since 2016. She described that after the assault she would sometimes see him on campus or walking his dog near her house. However, the event that caused her to seek an SVPO was a happenstance encounter where she saw Appellant at a Walmart in 2018, at which time she was no longer a student at the University. Absent further facts, it is my view that the chance encounters may not rise to a continued risk of harm. Nor do I think a happenstance encounter is the sort of harm the PVSVIA is designed to prevent. Indeed, such encounters would not be preventable under the SVPO entered by the trial court, which only prohibits Appellant from abusing or contacting the victim.3 Without an articulable basis for its findings from the trial court, it is nearly impossible to review whether K.N.B. met the burden of proof.
While I in no way question that K.N.B. suffers from panic attacks, I would conclude the trial court misapplied the standard by failing to consider whether the actions of Appellant present a "continued risk of harm from the defendant." Solely looking at K.N.B.’s subjective fear fails to give meaning to the statute which requires proof by a preponderance of the evidence that K.N.B. is at a continued risk of harm from Appellant. As Appellant accurately observes, "[u]nder this standard, virtually every plaintiff would be entitled to entry of a final protection order." Appellant's Brief at 50-51. Because I believe the trial court misapplied the standard in assessing whether K.N.B. proved by a preponderance of the evidence that she was at a continued risk of harm from Appellant, I would reverse and remand. Accordingly, I dissent.