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Acknowledging that the state's Protection of Victims of Sexual Violence or Intimidation Act does not specify a time limit for filing an action seeking a protection order and noting that no Pennsylvania court has yet addressed the issue, the Pennsylvania Superior Court has ruled that the six-year catchall statute of limitations applies.

In a precedential Jan. 30 opinion K.N.B. v. M.D., a unanimous three-judge panel of the appellate court upheld a protection order issued under the PVSVIA by a Clarion County Court of Common Pleas judge.

Plaintiff K.N.B. sought the sexual violence protection order against defendant M.D. after an alleged sexual assault that took place while they were both students at Clarion University, according to the court's ruling. M.D. had sought to vacate the order, arguing that K.N.B.'s action was time-barred because it was filed more than two years after the alleged assault.

To support his argument, M.D. pointed to subsection 5524(1) of the PVSVIA, which establishes a two-year statute of limitations for "'an action for assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process.'" M.D. said that subsection applied because K.N.B. alleged she was a victim of sexual battery.

But Judge Maria McLaughlin disagreed, saying, "the PVSVIA does not provide victims of sexual violence with a cause of action for tortious conduct."

"It requires merely the assertion of tortious conduct," McLaughlin said. "Further, unlike the actions mentioned in Section 5524(1), in which a plaintiff seeks compensation for past harm, the intent of the PVSVIA is to protect the petitioner from future harm."

McLaughlin, joined by President Judge Jack Panella and Judge Victor Stabile, also rejected M.D.'s reliance on subsections 5524(2), which mandates a two-year statute of limitations for "'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,'" and 5524(7), which applies to actions sounding in trespass.

"Sections 5524(2) and 5524(7), which both apply to actions seeking damages, do not apply here," McLaughlin said. "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.' Although K.N.B. put a request for damages in the petition, the court lacked the power to award damages and her request does not convert the petition for an SVPO into a civil complaint seeking damages."

M.D.'s additional argument that 5524(5) should apply because it deals with "'an action for a civil penalty'" and he was assessed a $100 surcharge likewise failed.

"The surcharge assessed against respondents such as M.D. is not a penalty," McLaughlin said. "A penalty is a punishment intended to deter undesired conduct. The $100 assessment at issue here is explicitly labelled a 'surcharge.' Section 62A05(c.1) provides that the surcharge will be paid to various governmental units, primarily for the purpose of carrying out the provisions of the PVSVIA. These purposes do not support a finding that the surcharge was intended as a punishment, or that it was intended to deter undesired conduct."

Counsel for M.D., Blair Hindman of the Hindman Law Firm in Clarion, could not be reached for comment. Counsel for K.N.B., Eric Hackenberg of Laurel Legal Services in Clarion, also could not be reached.