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March 24, 2026 Get Citation Alerts Download PDF Add Note

Weatherholtz, K. v. McKelvey, D.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 190 MDA 2023
• Precedential Status: Non-Precedential

• Judges: Bowes

• Opinion

• Authorities (4)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Lead Opinion

                        by [Mary Janes Bowes](https://www.courtlistener.com/person/8225/mary-janes-bowes/)

J-S27020-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

KRISTIN ALLYN WEATHERHOLTZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DYLAN JACOB MCKELVEY :
:
Appellant : No. 190 MDA 2023

Appeal from the Order Entered January 17, 2023
In the Court of Common Pleas of Lebanon County Civil Division at No(s):
2018-40012

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.: FILED MARCH 24, 2026

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. On remand to us from our Supreme Court, we

affirm.

Our Supreme Court summarized the relevant history thusly:

[Appellant], sexually abused [Appellee], in 2009 or 2010 when
she was fourteen years old [and he was stationed in Iraq]. On
January 12, 2018, [Appellee] filed her first petition for a protective
order under the [PVSVIA] after she learned that [Appellant]
attempted to locate her address, contact her through mutual
friends, and break up her marriage. The court granted the petition
and issued a protective order prohibiting [Appellant] from having
any contact with [her] for three years. The order expired on
January 18, 2021.

On June 6, 2022, [Appellee] was at a flea market with her family
when she encountered [Appellant], prompting her to file a second
J-S27020-23

petition for a protective order on August 31, 2022. The same day,
the trial court granted a temporary sexual violence protective
order. On November 28, 2022, [Appellant] filed a motion to
vacate the temporary sexual violence protective order and dismiss
[Appellee]’s petition on the basis that the petition was barred by
the six-year statute of limitations, which began running at the
time of the initial sexual assault in 2009.

On January 13, 2023, the trial court held a hearing on the petition
where both parties testified. [Appellee] first testified that
[Appellant] sexually abused her in 2009 or 2010. She stated that
on June 6, 2022, she was with her family setting up a stand at a
flea market when [Appellant] walked within twenty feet of her,
made eye contact for a few seconds, smiled, waved, and then
bolted away. She conveyed that this interaction made her afraid
and caused her to check her surroundings going forward. She
also explained that prior to the interaction at the flea market,
[Appellant had in the past] tried to contact her on numerous
occasions. After the encounter at the flea market, [Appellee]
testified that she definitely had more fear and anxiety as she
described being very skeptical about going anywhere and would
not go anywhere without someone with her. For his part,
[Appellant] testified that on June 6, 2022, he was at the flea
market with his friend and sister to visit another friend. [He]
stated that he did not see [Appellee] at the flea market and
maintained that he was talking to his friend the entire time he was
there.

At the conclusion of the hearing, the trial court granted
[Appellee]’s petition and entered a final protective order against
[Appellant], effective until January 13, 2026.[1] On January 19,
2023, [Appellant] filed a motion for post-trial relief reiterating that
[Appellee]’s action was barred by the statute of limitations and
that [she] failed to provide sufficient evidence that [he] engaged
in one or more acts that demonstrate a continued risk of harm to
[her]. On January 26, 2023, the trial court denied [his] motion.

---

1 Between our Supreme Court’s remand and this Court’s disposition, the
underlying order expired. Although that arguably renders the appeal moot,
we will address Appellant’s remaining issues, as directed by our Supreme
Court, in an abundance of caution because the existence of the final protective
order may have some undetermined collateral consequences.

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The court first noted that pursuant to [Pa.R.Civ.P.] 1957(b), no
post-trial motions may be filed after a final order is entered under
the [PVSVIA]. Additionally, the court rejected [his] statute of
limitations argument, reasoning that [Appellee’s] right to relief
under the [PVSVIA] arose when [he] committed the acts of
harassment and/or intimidation on or about June 6, 2022.

Weatherholtz v. McKelvey, 348 A.3d 195, 198-200 (Pa. 2025) (cleaned

up).

This timely appeal followed. Both Appellant and the trial court complied

with the requirements of Pa.R.A.P. 1925. On appeal, Appellant raises six

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
of sexual violence or intimidation committed by [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 [Appellee’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?

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J-S27020-23

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).

This Court previously reversed the order and dismissed the petition with

prejudice because we determined, applying a six-year statute of limitations,

that Appellee’s 2022 petition was time-barred based upon the triggering act

being the most recent act of intimidation or sexual violence as defined by the

PVSVIA. See Weatherholtz v. McKelvey, 305 A.3d 103 (Pa.Super. 2023).

Appellee appealed that decision to our High Court. The Supreme Court

reversed our ruling and ultimately remanded, concluding that “the limitation

period begins to run from the date of the act or circumstance that

demonstrates that a plaintiff, or appropriate individual, is at a continued risk

of harm from the defendant, as this is the moment an action accrues.”

Weatherholtz, 348 A.3d at 197. The High Court’s holding disposed of

Appellant’s first three issues in the following manner:

[T]he continued risk of harm element is separate and distinct from
the underlying act of sexual violence and intimidation, and . . . a
continued risk of harm may not arise for months or years after the
act of sexual violence or intimidation. Likewise, here, [Appellee]’s
encounter with [Appellant] at the flea market in 2022—which
occurred more than a decade after the sexual violence—increased
her fear and anxiety, prompting her to seek relief under the
[PVSVIA].

Moreover, because a victim is able [to] prove a continued risk of
harm based on the victim’s own subjective fear, the point at which
there is a continued risk of harm is innately tied to the victim’s
subjective experience and the unique circumstances of the

-4-
J-S27020-23

particular case. As a general matter, however, it is clear that a
plaintiff has no basis for relief under the [PVSVIA] until the plaintiff
is able to prove that he or she is at a continued risk of harm from
the defendant. With no continued risk of harm, the action does
not accrue, and the statute of limitations does not begin to run.
Therefore, we conclude that the six-year statute of limitations for
actions brought under the [PVSVIA] begins to run from the date
of the act or circumstance that demonstrates that a plaintiff, or
appropriate individual, is at a continued risk of harm from the
defendant, as this is the moment an action accrues.

Id. at 208 (cleaned up). Since its disposition was limited, the Court

“remand[ed] to [us] to review the remaining claims of error raised by

[Appellant].” Id. at 210.

Hence, we begin our present review with Appellant’s fourth issue.

Therein, he assails Appellee’s evidence that she was a victim of sexual violence

or intimidation such that she could invoke the protections of the PVSVIA. See

Appellant’s brief at 27. 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 of such protection orders, “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).

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

-5-
J-S27020-23

. . . by the preponderance of the evidence.” S.W. v. S.F., 196 A.3d 224, 228

(Pa.Super. 2018) (citation omitted). We have explained that “[t]he

preponderance of the evidence standard of proof is the least demanding of the

three standards of proof typically used in Pennsylvania jurisprudence. It is a

more likely than not inquiry, supported by the greater weight of the evidence;

something a reasonable person would accept as sufficient to support a

decision.” E.A.M., 173 A.3d at 320 (cleaned up). Finally, 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 argues that Appellee’s mention of his unnamed conviction at

the hearing for “a crime involving some sort of sexual assault or abuse” based

upon “contact via the internet in 2009 when [Appellant] was stationed in Iraq”

was insufficient to prove that she was a victim of sexual violence as defined

in the PVSVIA. See Appellant’s brief at 28. According to Appellant, the court

could have only made such a conclusion if Appellee had provided details of

what occurred in 2009. Id. at 27-28.

Contrary to Appellant’s argument, “the PVSVIA requires only that a

petitioner assert that he or she is a victim of sexual violence[.]” E.A.M., 173

A.3d at 319 (emphasis added) (noting that “the mere assertion that [the

petitioner] was a victim of sexual violence was sufficient to satisfy the initial

-6-
J-S27020-23

evidentiary threshold as long as the trial court found it to be credible”). The

PVSVIA defines sexual violence in the following manner:

“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).

42 Pa.C.S. § 62A03.

Appellee unequivocally met this burden when she averred at the hearing

that she was the victim of a crime of sexual assault, and the court found her

credible. Moreover, at the conclusion of the hearing, Appellant conceded that

“there is no question about” Appellee being “a victim of sexual violence

committed by [Appellant]” as required for a protection order pursuant to the

PVSVIA. See N.T., 1/13/23, at 21. Indeed, Appellant expressly and

repeatedly admitted that Appellee “was the victim of

Photograph/Film/Depiction on Computer sexual abuse of a minor committed

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J-S27020-23

by [Appellant] in 2009.” Memorandum of Law in Support of Oral Motion to

Dismiss to be Made at Hearing, 1/23/23, at unnumbered 1; see also Motion

for Post-Trial Relief, 1/19/23, at 29 (same). In other words, despite failing to

cite the relevant statutory section, Appellant agreed that he was convicted of

18 Pa.C.S. § 6312(b) (titled “Photographing, videotaping, depicting on

computer or filming sexual acts”), an enumerated offense of sexual violence

as defined by the PVSVIA. Thus, we reject his contention that Appellee did

not appropriately assert this element.

Appellant next propounds that any supposed actions on his behalf of

smiling and waving at Appellee did not amount to a continued risk of harm so

as to trigger relief under the PVSVIA. See Appellant’s brief at 28. He

maintains that Appellee experiencing “some moments of anxiety” was

insufficient to establish a continued risk of harm. Id. at 29-30.

However, the PVSVIA’s second prong “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).” K.N.B. v. M.D.,

259 A.3d 341, 350 (Pa. 2021). Furthermore, our High Court has explicitly

held that “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.” Id. at 351 (footnote omitted).

Here, the trial court determined that Appellant’s conduct in 2022

“subjected [Appellee] to a continued risk of psychological and emotional harm

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J-S27020-23

to satisfy the requirements for the issuance of a final [PVSVIA o]rder.” Trial

Court Opinion, 3/31/23, at 8. This conclusion is amply supported by the

record. Appellee testified that the interaction at the flea market made her

afraid in light of Appellant’s past violations of the no contact order and

compelled her to thereafter check her surroundings. See N.T., 1/13/23, at 7,

1. On cross-exanimation, she elaborated that his smiling and waving “ma[de

her] anxiety go through the roof” such that she “really didn’t want to be

outside” and “wouldn’t go anywhere without someone with [her].” Id. at 10,

1. The court plainly found this testimony credible. Accordingly, Appellee

established by a preponderance of the evidence a continued risk of harm from

Appellant.

Appellant’s last issue does not assail any action by the trial court, but

rather is an anticipatory reaction if Appellee were to argue that the 2023 order

was permissible as an extension of the expired 2018 order. See Appellant’s

brief at 30. Since the trial court did not treat the new petition as an extension

of the expired order, we need not discuss this argument any further.

Based on the foregoing, we affirm the court’s imposition of a final

protection order pursuant to the PVSVIA.

Order affirmed.

-9-
J-S27020-23

Judgment Entered.

Benjamin D. Kohler, Esq.
Prothonotary

Date: 03/24/2026

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