Judges: Nix, C.J., and Flaherty, Zappala, Cappy, Castille and Montemuro
Filed Date: 3/24/1995
Status: Precedential
Modified Date: 10/19/2024
OPINION
This appeal requires us to interpret the scope of the phrase “person responsible for the child’s welfare” within the context of 42 Pa.C.S. § 5554(3).
On September 21, 1992, appellant was charged with one count of Indecent Assault
Appellant filed an Omnibus Pretrial Motion which included a motion to dismiss on the grounds that each charge against him was barred by the applicable statute of limitations. Appellant asserted that because he was not the paramour of the victim’s parent, and was not in any way responsible for the child’s welfare, he was never in an association with the victim sufficient to satisfy the tolling provisions of the statute.
On January 26, 1992, the Court of Common Pleas of Allegheny County held a hearing on appellant’s motions. At this
After the January hearing on appellant’s status, the trial court made the following factual findings:
The charges arose when the victim was approximately seven or eight years old. The [Appellant] was at least 53 years old when this incident occurred in 1984. The [Appellant] is not a familial relative of the victim. The mother of the victim testified that there was no romantic relationship between her and the defendant. She met him in 1983 and they became very good friends. She occasionally used other baby-sitters but during the time they were friends he would baby-sit the children once or twice a week without pay at his home. The mother characterized him as a good friend but not a father figure to her children nor an authority figure authorized to discipline the children in her absence.
(N.T. at 3, Feb. 22, 1993).
From these facts, the trial court concluded:
Clearly in light of the mother’s testimony, the [Appellant] is not a parent nor, in fact, any relative at all to this child victim. Moreover, the [Appellant] was not a paramour of the mother. She testified that he was simply a friend. She also testified that she and the child victim did not reside with the [Appellant], only that they stayed at his house very briefly. Finally, the [Appellant] was not someone responsi*121 ble for the child’s welfare. He was merely a babysitter. The applicable cases stress that the [Appellant] exercises control over the victim and has the advantage of an authority figure that somehow deters the child from reporting the abuse. However, from the testimony of the mother, there wasn’t any kind of emotional pressure on the child not to report the incident in a timely fashion. Accordingly, the Commonwealth is barred from prosecution notwithstanding 42 PACS [sic] Section 5554(3).
(Id. at 4-5).
In reversing, the Superior Court first discussed Commonwealth v. Bethlehem, 391 Pa.Super. 162, 570 A.2d 563 (1989), alloc, denied, 525 Pa. 610, 577 A.2d 542 (1990), which involved “sexual assaults by the victim’s uncle during periodic visits to the victim’s parent’s home, while the victim’s parents were at home in the next room.” Id., 391 Pa.Super. at 167, 570 A.2d at 565. The court found that the legislature did not intend the phrase “person responsible for the child’s welfare” to apply “to an uncle visiting the victim’s parents’ home.” Id. at 168, 570 A.2d at 566. Because the parents were present in the next room,, the court reasoned that “it was the parents and not the visiting relative who remained the ‘person(s) responsible for the child’s welfare’ ” within the meaning of Section 5554(3). Id. The court construed the phrase “person responsible for the child’s welfare” to apply “to persons under whose permanent or temporary custody and control the parent(s) or legal guardian(s) have placed a child----” Id.
The Superior Court then applied Bethlehem’s definition of “person responsible for the child’s welfare” as “one who has ‘permanent or temporary custody and control’ of the child” to Appellant and concluded,
Under the record facts of this case, it is apparent that Gerstner, as babysitter, had temporary custody and control of the child at the time the alleged offenses took place. Hence it cannot be refuted that Gerstner was responsible*122 for the child’s welfare, and consequently, the statute of limitation period was tolled by § 5554(3).
Gerstner, 428 Pa.Super. at 342, 630 A.2d at 1280.
To support this conclusion, the Superior Court relied upon Commonwealth v. Powers, 395 Pa.Super. 231, 577 A.2d 194 (1990). There, a grandfather was convicted of offenses relating to the sexual abuse of his granddaughter while babysitting for her. On appeal to the Superior Court, the grandfather claimed that trial counsel was ineffective for failing to “pursue a pre-trial motion to quash on statute of limitations grounds.” Id. at 234-235, 577 A.2d at 195. The Powers court concluded that the grandfather was not prejudiced by counsel’s failure because, “as an adult babysitter for absent parents, appellant was acting as a ‘person responsible for the child’s welfare’ within the meaning of the phrase in 42 Pa. C.S.A. § 5554(3).... ” Id. (emphasis in original).
After analyzing both Bethlehem and Powers, the Superior Court stated,
The same logic is applicable in this case. Gerstner was the child’s babysitter, in his home, on a regular basis. He had temporary custody and control of both children, being responsible for them for hours at a time. This included those occasions when the young girls stayed in his house overnight, under his care, while the mother was absent. This arrangement lasted approximately three years. The trial court minimized these facts. That the child’s mother and Gerstner were not paramours has no bearing on the determination of whether he was responsible for the child’s welfare while babysitting. We conclude that Gerstner was, at the time of the alleged criminal acts, responsible for the child’s welfare. The trial court erred by finding otherwise.
Gerstner, 428 Pa.Super. at 343, 630 A.2d at 1280 (emphasis in original).
In Bethlehem, the Superior Court equated one responsible for a child’s welfare with one who stands in loco parentis. Bethlehem, 391 Pa.Super. at 168, 570 A.2d at 566. In the case
As the Superior Court stated:
The term in loco parentis is not part of 42 Pa.C.S. § 5554; in fact, it is a specific, technical phrase used almost exclusively in matters of child custody. Had the General Assembly intended to incorporate the term in loco parentis into § 5554, it would have done so, instead of using the phrase “a person responsible for the child’s welfare.”
Gerstner at 342, 630 A.2d at 1280 (emphasis in original). The term in loco parentis appears in the Pennsylvania Consolidated Statutes thirty-two times. The General Assembly knew
In loco parentis and “person responsible for the child’s welfare” are not interchangeable.
The phrase “in loco parentis” refers to a person who puts himself in the situation of the lawful parent by assuming the obligations incident to the parental relationship without going through the formality of legal adoption. The status of “in loco parentis” embodies two ideas; first, the assumption of the parental status, and, second, the discharge of parental duties.
Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968). Black’s Law Dictionary defines in loco parentis as,
In the place of the parent; instead of a parent; charged, factitiously, with a parent’s rights, duties, and responsibilities.
Black’s Law Dictionary 787 (6th ed. 1990). When courts find an in loco parentis relationship, “[t]he rights and liabilities arising out of the relation are, as the words imply, exactly the same as between parent and child.” Commonwealth v. Cameron, 197 Pa.Super. 403, 407, 179 A.2d 270, 272 (1962). In loco parentis describes a relationship in which one assumes the legal rights and duties of parenthood.
Our conclusion that the Bethlehem court erred in equating a “person responsible for the child’s welfare” with one who stands in loco parentis, however, in no way changes the substance of the Superior Court’s holding in Bethlehem. In reaching its holding, the Bethlehem court clearly found “a person responsible for the child’s welfare” to be “one who has ‘permanent or temporary custody and control’ of the child.” It then stated, “in other words, those who stand in loco parentis.” The Superior Court did not, however, find a “person responsible for the child’s welfare” to be “one who has ‘permanent or temporary custody and control of the child and who stands in loco parentis to the child.” When it stated “in other words, those who stand in loco parentis ”, it was merely citing what it believed to be a synonymous term. The fact that we now* note that this term was, in fact, not synonymous does not remove any element of the definition of “person responsible for the child’s welfare” given by the Bethlehem court.
A baby-sitter is by definition one who is temporarily entrusted with the responsibility of ensuring a child’s safety and caring for its needs (i.e. ensuring its welfare) in the parent’s absence. Such duties place a baby-sitter squarely within the language of Section 5554(3).
Appellant argues that such an interpretation of Section 5554(3) paints with too broad a brush. Specifically, he asserts that in adopting Section 5554(3), the legislature sought to extend the tolling provision only to those situations in which a child has been abused by one holding such a position in the child’s life as to make it impossible for the child to reveal the abuse. Hence, he contends that the phrase “person responsible for the child’s welfare” must be interpretéd to include only those individuals who provide for the maintenance and support of the child and/or occupy a position which would serve to deter an abused child from reporting the harm.
We decline to adopt this definition of “person responsible for the child’s welfare” for two reasons. First, the legislative history surrounding the enactment of Section 5554(3) is silent. Thus, we are unable to conclude that the legislature’s motivation in adopting Section 5554(3) was to refrain from applying the statute of limitations only in those cases in which the perpetrator occupies a position such as would deter reportage of the abuse. On the contrary, in light of our legislature’s recent enactment of 42 Pa.C.S. § 5552(c)(3), which tolls the statute of limitations for any sexual offense committed against a minor under 18 years of age, regardless of the relationship between the victim and the vietimizer, we find it far more likely that Section 5554(3) was adopted with the intention of restricting application of the statute of limitations in any instance where the victim is too young or too innocent to realize the wrongful nature of the acts performed. We are
We, likewise, find Section 5552(c)(3) to be a strong indication that, for the purposes of 5554(3), the legislature did not intend the phrase “person responsible for the child’s welfare” to be given the restrictive definition employed by the Commonwealth Court in Pennsylvania State Education Association v. Commonwealth, Department of Public Welfare, 68 Pa.Cmwlth. 279, 449 A.2d 89 (1982). In Pennsylvania State Education Association, the Commonwealth Court was called upon to interpret the phrase “person responsible for the child’s welfare” in the context of 11 Pa.C.S. § 2203 (recodified at 23 Pa.C.S. § 6303), which defines the term “child abuse”. The Commonwealth Court subsequently held that a teacher was not a “person responsible for the child’s welfare” on the ground that this phrase referred only to those individuals providing such matters as housing, furnishings, income, clothing, and medical care.
We find this definition, however, to be wholly inadequate even if we were to adopt appellant’s position that Section 5554(3) applies only in those situations in which the perpetrator was in a position to deter the reportage of the abuse. While a school teacher may not provide a child’s home environment, such an individual clearly occupies a position of sufficient authority to be able to deter a child from reporting abuse. Thus, Pennsylvania State Education Association is overruled.
The second reason we are reluctant to apply the restrictive definition of “person responsible for the child’s welfare” proposed by appellant is that such an application would render the phrase a virtual nullity since an individual responsible for providing for the maintenance and support of a child and/or occupying such an important position in the child’s life so as to be able to deter the reporting of abuse would almost certainly fall within the three other categories listed by Section 5554(3), namely, a parent, an individual residing in the same home as the child, and a parent’s paramour.
ZAPPALA, J., files a Dissenting Opinion.
MONTEMURO, J., is sitting by designation.
. § 5554. Tolling of statute
... [T]he period of limitation does not run during any time when:
* 4* * * * *
(3) a child is under 18 years of age, where the crime involves injuries to the person of the child caused by the wrongful act, or neglect, or unlawful violence, or negligence of the child’s parents or by a person responsible for the child's welfare, or any individual residing in the same home as the child, or a paramour of the child's parent.
(emphasis added).
. 18 Pa.C.S. § 3126(a)(1).
. 18 Pa.C.S. § 6301.
. The victim in this case was seven years old when the events at issue began and was ten years of age when they ended in December 1987.
. The precise language of the Bethlehem opinion was as follows:
We construe the provision to apply to persons under whose permanent or temporary custody and control the parent(s) or legal guardians(s) have placed a child, in other words, those who stand in loco parentis to the child.
Bethlehem at 168, 570 A.2d at 566. We agree with the Superior Court that the portion of this language equating "one with permanent or temporary custody and control of the child” with one standing in loco parentis was indeed dicta since the issue of what constitutes in loco parentis or whether one who has "permanent or temporary custody” of a child stands in loco parentis, was not an issue essential to the disposition of the case in Bethlehem.
We note, however, that the Superior Court’s determination that a "person responsible for the welfare of a child” was "one who has permanent or temporary custody and control of the child” was not dicta. The issue presented in Bethlehem was whether the defendant could be deemed a "person responsible for the child’s welfare”. In order to resolve this issue, it was essential for the court to define that phrase. Thus, the court’s determination that a "person responsible for the child’s welfare” was "one who has permanent or temporary custody and control of the child” was not dicta. Nor does the fact that the court ultimately found that the defendant did not fall within this definition render this language dicta since such a determination simply could not have been made without applying this standard.
. The concept that in loco parentis embodies the legal aspects of parenthood receives further support when one examines its usage in the Pennsylvania Consolidated Statutes. See 18 Pa.C.S. § 3206(b) (requiring consent of an adult standing in loco parentis when a parent or guardian is unavailable before a physician may perform an abortion upon a woman under eighteen years of age); 24 Pa.S. § 13-1327(b)(2) (preserving in the parent or parents, or person or persons in loco parentis to a child the right to choose the education and training for that child); 24 Pa.S. § 15-1546 (permitting a parent or person in loco parentis to remove child from school for religious instruction); 24 Pa.S. § 5703 (defining "parent” as a "parent of a child enrolled in a nonpublic school or a person standing in loco parentis to such child” under the Parent Reimbursement Act for Nonpublic Education); 50 Pa.S. §§ 4402, 4403 (authorizing a parent, guardian or individual standing in loco parentis to a child under the age of eighteen to apply for voluntary admission or commission to a facility as defined in the Mental Health and Mental Retardation Act of 1966); 50 Pa.S. § 7201 (empowering a parent, guardian, or person standing in loco parentis to a child less them
. We acknowledge the possibility that one may stand in loco parentis to a child and yet not be one responsible for the child’s welfare.