Zimmerman, M. v. Merz, M
CourtSuperior Court of Pennsylvania
Date FiledNovember 3, 2026
Docket878 MDA 2026
JudgeLane
StatusUnpublished
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Full Opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
MARISSA ZIMMERMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK MERZ :
:
Appellant : No. 878 MDA 2026
Appeal from the Order Entered May 5, 2026
In the Court of Common Pleas of Columbia County Civil Division at
No(s): 2025-CV-0001508-AB
BEFORE: SULLIVAN, J., LANE, J., and STEVENS, P.J.E.*
MEMORANDUM BY LANE, J.: FILED: NOVEMBER 3, 2026
Mark Merz (“Father”) appeals from the order which granted the petition
filed by Marissa Zimmerman (“Mother”) pursuant to the Protection from Abuse
(“PFA”) Act, 23 Pa.C.S.A. §§ 6101-22 (“the Act”), and entered a final PFA
order against Father for the protection of the parties’ daughter, M.M. (born in
2011). We affirm.
The trial court summarized the relevant factual and procedural history
of this matter, as follows:
[Father and Mother (collectively, “Parents”)] are the
biological parents of [M.M.] See N.T., 5/1/26, at 3. [Parents]
have known each other for fourteen years but lived together only
briefly at the beginning of their relationship. See id. at 4. [Mother
was awarded primary physical and legal custody of M.M. in
separate custody proceedings. Prior to the events underlying this
appeal, Father had partial physical custody of M.M.] Mother
currently lives in Orangeville, Pennsylvania, while Father currently
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* Former Justice specially assigned to the Superior Court.
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lives in Lake Harmony, Pennsylvania, but he spends a good
amount of time at [the New Jersey home of his romantic partner
for the last eleven and one-half years, M.P. (“Paramour”).] See
id. at 3, 27, 36.
The incident that gave rise to this action took place at
Paramour’s home in New Jersy on December 28, 2025. See id.
at 27-28. [M.M.] testified as to the events that occurred on that
night. She began by stating that she does not feel safe being at
Father’s home with him and Paramour. See id. at 8. M.M.
explained that Father is [an alcoholic who continues to drink]
alcohol and when he does “bad incidents” occur. Id. at 8-9.
Specifically, M.M. recalled incidents when Father became
intoxicated [and “lost” M.M.] at an amusement park. Id. She
testified that Father’s actions scared her because . . . Mother had
to come and pick [M.M.] up [from the amusement park after “the
security at the amusement park was involved.”] Id. Another
incident occurred in Florida when Father and Paramour were
intoxicated, fighting ensued, Father locked Paramour out of a
hotel room, and with M.M. in the room and Father passed out on
the bed, Paramour attempted to break down the hotel door. See
id. at 9-10. M.M. testified that she witnessed numerous other
examples of intoxicated fighting (“bad incidents”) between Father
and Paramour, including an incident last year where M.M.
observed Father hitting Paramour. See id. at 9-10, 16.
M.M. testified about the most recent incident. She explained
that she was staying with Father over Christmas [in 2025]. See
id. at 11. . . . That night[,] Father was drinking and “got really
mad.” Id. [M.M. was unsure whether Father was drinking vodka
or Pink Whitney, because they have similar bottles, but she
testified that “it was clear so I’m pretty sure it was vodka.” N.T.,
5/1/26, at 19. M.M. has clearly been exposed to alcohol
throughout her life. In her testimony she noted that Father
became intoxicated after drinking “Four Lokos.” Id. at 9. Father
testified that he has not had a drink in three (3) years and was
not drinking that night, see id. at 30, but Paramour testified that
she was “unsure” if he was drinking the night of the incident. Id.
at 36.] Out of nowhere, Father started “blasting” music and
saying “really ugly and nasty things” to Paramour. Id. at 11.
M.M. was using Snapchat to talk and play a game with her friends
while Paramour and [her] other two children [with Father] were
sitting on the couch in the living room. See id. at 11.
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[M.M. related that] Paramour took Father’s phone which
caused Father to freak out. See id. at 11. “He stood up like
instantly and he was just like screaming really, really badly. And
so I hung up the phone . . . and then I went upstairs and then
[Paramour’s two children] followed me up there . . . because
[Father and Paramour] were really fighting.” Id. at 11-12. The
other two children went into their room, and M.M. went into hers.
See id. at 11. M.M. heard Father running up the stairs and
screaming, so she opened the door [and] saw Father punch
Paramour in the face. See id. at 12. Paramour came into M.M.’s
room with the two other children and Father took his phone and
went downstairs. See id. at 12-15. M.M. described wanting to
go home, not feeling safe, and being . . . “scared that I was going
to get hit, that [Paramour’s children] were going to get hurt.” Id.
at 13, 15. [M.M.] testified that she “didn’t know what to do ‘cause
Paramour was completely helpless.” Id. at 13. . . .
[Paramour testified that Father did not strike her
intentionally, but unintentionally while fighting over the phone.
See id. at 39-40. Father testified that he did not touch Paramour,
but that she fell running up the stairs in her wet socks. See id.
at 28, 32.]
Eventually, M.M. convinced Paramour to call Mother. See
id. at 14. . . . While the calls were being made, Father came back
upstairs and began yelling and hitting the bedroom door. See id.
Paramour opened the door and Father looked like he was going to
hit her again. See id. So, M.M. stepped in between them and
Father came “towards” her, forcing [M.M.] to step back and [slam
the door to prevent Father from entering the room.] Id. at 14,
18. Specifically, M.M testified that Father “had his arms out and
he was going to grab me and then I moved back.” Id. at 18.
Eventually, [Mother and M.M.’s stepfather] came to pick her up
and Father was arrested[, although the criminal domestic violence
charges were later dropped. See id. at 14, 34-35.]
Trial Court Opinion, 7/10/26, at 2-5 (footnote omitted, other footnotes added
to quoted text in brackets).
On December 29, 2025, Mother filed a petition seeking the entry of a
PFA order against Father on behalf of M.M. Following an ex parte hearing, the
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trial court entered a temporary, one-year PFA order that prohibited Father
from having any contact or exercising any custody rights with respect to M.M.
See Temporary PFA Order, 12/30/25, at 1-3.
The matter then proceeded to a final PFA hearing on May 1, 2026, at
which the court heard testimony from M.M., Parents, and Paramour. The trial
court determined that M.M. “testified very credibly – she was articulate,
thoughtful, and intelligent.” Trial Court Opinion, 7/10/26, at 3 n.5. At the
hearing, the trial court initially stated that it was uncertain as to whether
Mother had satisfied the definitions of abuse at section 6102(a)(1)-(4), and
that it wanted to “do some research on the case law.” See N.T., 5/1/26, at
25. However, the trial court immediately clarified that its inquiry under the
Act was not whether abuse or harm had, in fact, occurred, but rather whether
M.M. was in reasonable fear of such abuse, stating as follows: “I think the
question is, her being a [fourteen]-year-old observing what she said that she
observed, is it reasonable for her to be in fear at that time that she could be
subject to bodily injury?” Id. at 26. At the conclusion of the hearing, the trial
court held the matter under advisement, noting again that it wanted “to do a
little bit of research to make sure I get it right on the law.” Id. at 42. The
trial court subsequently determined that Mother had satisfied section
6102(a)(2) and (5) of the Act. See Trial Court Opinion, 7/10/26, at 7-8.
Accordingly, on May 5, 2026, the trial court entered a final PFA order that
precluded Father from having any contact with M.M., apart from periods of
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supervised partial physical custody at the discretion of the parties and subject
to M.M.’s agreement, until May 1, 2027.
Father filed a timely notice of appeal. However, he did not
contemporaneously submit a concise statement of errors complained of on
appeal, as required by Pa.R.A.P. 1925(a)(2)(i) and 905(a)(2). The trial court
directed Father to file a Rule 1925(b) concise statement within thirty days,
and Father timely complied with that directive. The trial court thereafter
authored a responsive opinion pursuant to Rule 1925(a)(2)(ii).1
Father raises the following issues for our review:
A. Whether the trial court erred and abused its discretion by
granting the final [PFA] order requested by [Mother], since
Mother failed to prove the statutory element of abuse under 23
Pa.C.S.[A.] § 6102(a)(2), as there was no reasonable basis for
the child to be in fear of imminent serious bodily injury from
[Father], who did not threaten the child on the night in question
or even come close to making any physical contact with her?
B. Whether the [trial] court erred and abused its discretion by
granting the final [PFA] order, since Mother failed to prove the
statutory element of abuse under 23 Pa.C.S.[A.] § 6102(a)(5),
since the course of conduct testified to by the child was
between Father and his girlfriend, not between Father and the
child, so there was no basis for the child to be in reasonable
fear of bodily injury from Father based on prior acts?
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1 An appellant’s “failure to file a Rule 1925(b) statement concurrently with a
children’s fast track appeal is considered a defective notice of appeal, to be
disposed of on a case-by-case basis” and which does “not result in dismissal
or quashal where there was no prejudice to the other parties as a result of the
late filing.” Interest of X.R., 350 A.3d 1042, 1044 n.3 (Pa. Super. 2025)
(citing In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009)). Here, Father
ultimately filed a concise statement, the trial court authored a Rule 1925(a)
opinion responding to his claims of error, and there is no allegation of
prejudice. Thus, we decline to quash Father’s appeal. See id.
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Father’s Brief at 9.
Our standard of review for a challenge to a final PFA order is well-
established:
In the context of a PFA order, we review the trial court’s
legal conclusions for an error of law or abuse of discretion. The
PFA Act does not seek to determine criminal culpability. A
petitioner is not required to establish abuse occurred beyond a
reasonable doubt, but only to establish it by a preponderance of
the evidence. A preponderance of the evidence standard is
defined as the greater weight of the evidence, i.e., enough to tip
a scale slightly.
Medina v. Green, 348 A.3d 1113, 1117 (Pa. Super. 2025) (quoting E.K. v.
J.R.A., 237 A.3d 509, 519 (Pa. Super. 2020)).
When a claim is presented on appeal that the evidence was not sufficient
to support a PFA order, this Court must determine whether the evidence was
sufficient to sustain the trial court’s conclusion by a preponderance of the
evidence. See Fonner v. Fonner, 731 A.2d 160, 161 (Pa. Super. 1999).
This Court will review the evidence in the light most favorable to the petitioner
and grant the petitioner the benefit of all reasonable inferences. Fonner, 731
A.2d at 161. However, it is within the exclusive province of the trial court as
the fact finder to assess the credibility of witnesses and determine the weight
to be accorded to their testimony. See Medina, 348 A.3d at 1117. Since
this Court cannot make independent factual determinations, we must accept
the findings of the trial court that are supported by the evidence. See id.
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The purpose of the Act is to protect victims of domestic violence from
those who perpetrate such abuse, with the primary goal of advance protection
of physical and sexual abuse. See E.K., 237 A.3d at 519. Under the Act, “the
court may grant any protection order or approve any consent agreement to
bring about a cessation of abuse of the plaintiff or minor children.” 23
Pa.C.S.A. § 6108(a). The Act defines “abuse,” as follows:
(a) General rule.—The following words and phrases when used
in this chapter shall have the meanings given to them in this
section unless the context clearly indicates otherwise:
“Abuse.” The occurrence of one or more of the following acts
between family or household members, sexual or intimate
partners or persons who share biological parenthood:
****
(2) Placing another in reasonable fear of imminent serious
bodily injury.
****
(5) Knowingly engaging in a course of conduct or repeatedly
committing acts toward another person, including following
the person, without proper authority, under circumstances
which place the person in reasonable fear of bodily injury.
The definition of this paragraph applies only to proceedings
commenced under this title and is inapplicable to any
criminal prosecutions commenced under Title 18 (relating to
crimes and offenses).
23 Pa.C.S.A. § 6102(a)(2), (5). This Court need only find sufficient evidence
with respect to one of the subsections of section 6102(a) to affirm the entry
of a PFA order. See Custer v. Cochran, 933 A.2d 1050, 1058 (Pa. Super.
2007) (en banc).
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In the context of a PFA case, the trial court’s objective is to determine
whether the victim is in reasonable fear of bodily injury. See K.B. v. Tinsley,
208 A.3d 123, 127 (Pa. Super. 2019). The intent of the alleged abuser is of
no moment. See id. Moreover, past acts by the perpetrator are significant
in determining the reasonableness of a PFA petitioner’s fear. See id. As the
goal of the Act is to prevent physical and sexual abuse, a victim does not have
to wait for physical or sexual abuse to occur for the Act to apply. See id.
Further, “a PFA petitioner is not required to file a police report, nor is it
necessary for [the petitioner] to introduce medical evidence of an injury. The
petitioner’s testimony is sufficient if it is believed by the trial court.” Custer
v. Cochran, 933 A.2d 1050, 1058 (Pa. Super. 2007) (en banc) (citations
omitted).
In his first issue, Father asserts that there was insufficient evidence to
establish that he placed M.M. in reasonable fear of imminent serious bodily
injury pursuant to section 6102(a)(2). Father argues that “[e]ven taking the
child’s testimony in the light most favorable to her, it [was] not reasonable for
her to have been in fear of imminent serious bodily injury.” Id. at 15. Father
maintains that because he never physically touched M.M. during the inciting
incident and was primarily arguing with Paramour, the trial court was not
permitted to find M.M.’s fear of serious bodily injury reasonable under the
circumstances. See id. at 14. Father insists that he “never even got close to
his daughter while the argument with [Paramour] was going on.” Id. Father
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additionally argues that although the trial court indicated at the PFA hearing
that it did not believe that there was sufficient evidence to establish abuse
pursuant to section 6102(a)(2), “the court changed its mind and decided,
incorrectly, that Mother . . . met her burden under [section] 6102(a)(2).” Id.
at 16.
The trial court considered Father’ first issue and determined that it
lacked merit. The trial court specifically indicated that it found M.M.’s
testimony to be credible, while deeming the opposing testimonies of Paramour
and Father “not credible and contradictory.” Trial Court Opinion, 7/10/26, at
6. The court further emphasized that “M.M. testified that she has, for years,
watched [Father] drink alcohol to excess, causing him to erupt into rage[-
]filled outbursts and physical assaults of [Paramour].” Id. Overall, the court
expressed that it had “no doubt that M.M., a [fourteen]-year-old girl, who has
witnessed Father, while intoxicated, punch and abuse Paramour over the
years, and who has witnessed significant fighting and anger over the years,
would be reasonably fearful of Father causing her imminent serious bodily
injury in that moment.” Id. at 7. The trial court explained:
[M.M.] had just watched the intoxicated Father punch
Paramour, someone he purports to love, in the face over a phone.
Father then, moments later, reengaged with Paramour and came
towards M.M. in a manner that made M.M. fearful for her safety.
There is no doubt that the child would have been fearful of being
similarly punched in the face after witnessing such an act. A 14-
year-old girl, being punched in the face or angrily pushed by an
intoxicated man, would very likely cause imminent serious bodily
injury, and the [c]ourt finds that M.M.’s fear was reasonable.
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Id. On this basis, the trial court concluded that “sufficient evidence existed
to establish, by a preponderance of the evidence, that [Father] committed
abuse under [section] 6102(a)(2).” Id. at 7-8.
Based upon the foregoing, we discern no abuse of discretion or error of
law by the trial court in relation to its findings pursuant to section 6102(a)(2).
We further conclude that the certified record amply supports the trial court’s
factual findings. As explained above, the goal of the Act is to prevent physical
and sexual abuse. See K.B., 208 A.3d at 127. Thus, a victim does not have
to wait for actual physical or sexual abuse to occur for the Act to apply. See
id. Rather, the Act will provide protection when the petitioner is in reasonable
fear of bodily injury. See id. In this regard, a petitioner’s testimony is
sufficient if it is believed by the trial court. See Custer, 933 A.2d at 1058.
Moreover, we review the record in the light most favorable to the petitioner
and grant the petitioner the benefit of all reasonable inferences. Fonner, 731
A.2d at 161.
Here, M.M.’s testimony fully supports the trial court’s determination that
the evidence was sufficient to establish her fear of imminent serious bodily
injury by a preponderance of the evidence in satisfaction of section
6102(a)(2). At the final PFA hearing, M.M. testified that Father and his “side”
of the family struggle with alcoholism. See N.T., 5/1/26, at 8-9. M.M.
explained that Father’s drinking has caused “a lot of bad incidents” throughout
her childhood. See id. at 9. She cited specific prior examples of Father’s
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intoxicated behavior, including incidents wherein: (1) Father “lost” M.M. while
drunk at an amusement park; (2) Father and Paramour “broke” a hotel room
door while fighting in Florida after drinking Four Lokos; and (3) Father was
“running” around the house with “no clothes on” and inexplicably “grabbed
ahold of [Paramour] and started hitting her.” Id. at 9-10, 17.
M.M. also described in detail the events of Father’s assaultive behavior
during Christmas of 2025. See generally id. at 10-16, 19-20. M.M. testified
that Father was drinking clear liquor on the night in question, which she
believed was vodka. See id. at 19. While drinking, M.M. reported that Father
suddenly became verbally abusive towards Paramour and then flew into a
violent rage after Paramour took his phone from him. See id. at 11-12.
During the ensuing fight, M.M. averred that she witnessed Father “punch”
Paramour “in the face.” Id. at 12. M.M. explained that Paramour and her
children attempted to take refuge in M.M.’s room and call for help. See id. at
12-14. M.M. testified, however, that Father continued to scream and
attempted to force his way into her room to continue beating Paramour. See
id. at 14-15. M.M. physically interceded between Father and Paramour but
was forced to back up and slam the door after Father attempted to assault her
as well. Id. at 14-15, 18. According to M.M., “[h]e had his arms out and he
was going to grab me and then I moved back.” Id. at 18. With respect to
the effect of Father’s behavior, M.M. attested that she was frightened during
this incident. She stated, “I didn’t feel safe, I was scared. I didn’t know what
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to do . . . .” Id. at 13. Moreover, M.M. also indicated that she was specifically
afraid that Father would “hit” and injure her. Id. at 15.
M.M.’s testimony, when viewed in the light most favorable to the
petitioner, and granting the petitioner the benefit of all reasonable inferences,
supports the trial court’s determination that the evidence was sufficient to
establish M.M.’s fear of imminent serious bodily injury by a preponderance of
the evidence in satisfaction of section 6102(a)(2). See Fonner, 731 A.2d at
161.
The fact that Father never physically touched M.M. is of no moment.
See id. at 163 (holding that “[w]hile physical contact may occur, it is not a
pre-requisite for a finding of abuse under [section] 6102(a)(2) of the Act”).
Moreover, the fact that Father and Paramour largely disputed M.M.’s
recollection of the events on the night in question does not dictate an alternate
outcome, as we are bound by the trial court’s determination that their
testimonies lacked credibility. See Trial Court Opinion, 7/10/26, at 6
(deeming the opposing testimonies of Father and Paramour “not credible and
contradictory”); see also Medina, 348 A.3d at 1117 (holding that it is within
the exclusive province of the trial court as the fact finder to assess the
credibility of witnesses and determine the weight to be accorded to their
testimony). Accordingly, we affirm the trial court’s final PFA order pursuant
to section 6102(a)(2).
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Since we have determined that sufficient evidence existed to justify the
entry of a final PFA order pursuant to section 6102(a)(2), we need not address
Father’s second issue, which challenges the trial court’s findings in relation to
section 6102(a)(5). See Custer, 933 A.2d at 1058 (holding that this Court
need only find sufficient evidence with respect to one of the subsections of
section 6102(a) to affirm the entry of a PFA order).
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/03/2026
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