J-S27020-23

2023 PA Super 215

KRISTIN ALLYN WEATHERHOLTZ

v.

DYLAN JACOB MCKELVEY 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 

____________________________________________

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.
J-S27020-23

- 2 -

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 threeyear 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 

____________________________________________

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.).
J-S27020-23

- 3 -

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). 
J-S27020-23

- 4 -

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 catchall 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 AltoonaJohnstown, 255 A.3d 237, 246–47 (Pa. 2021) (cleaned up).
J-S27020-23

- 5 -

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.
J-S27020-23

- 6 -

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).

. . . . 
J-S27020-23

- 7 -

“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 
J-S27020-23

- 8 -

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) 
J-S27020-23

- 9 -

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. 
J-S27020-23

- 10 -

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 
J-S27020-23

- 11 -

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 
J-S27020-23

- 12 -

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 
J-S27020-23

- 13 -

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 sixyear 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 
J-S27020-23

- 14 -

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

____________________________________________

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.”).