K.N.B., Appellee v. M.D., Appellant
No. 20 WAP 2020
IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
DECIDED: SEPTEMBER 22, 2021
JUSTICE WECHT
[J-13-2021]; BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.; Appeal from the Order of the Superior Court entered January 30, 2020 at No. 1003 WDA 2018 affirming the Order of the Court of Common Pleas of Clarion County entered June 15, 2018 at No. 155 CD 2018; SUBMITTED: January 25, 2021
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“)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.
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.”
(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.
After K.N.B. filed her petition, the court entered a temporary SVPO and scheduled a hearing to consider whether a final order
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
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.
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(5) An action upon a statute for a civil penalty or forfeiture.
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(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
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
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 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
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.”
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.
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
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
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.”
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 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
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[.]”
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
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.”
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.”
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.”
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 unambiguous statutory language.
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,
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.
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.