“Moreover, this [C]ourt has held that the two statutes dealing with governmental and sovereign immunities, viz., the [Tort Claims Act] and the Sovereign Immunity Act, are to be interpreted consistently, as they deal with indistinguishable subject matter.”
How later courts described this case
- “Moreover, this [C]ourt has held that the two statutes dealing with governmental and sovereign immunities, viz., the [Tort Claims Act] and the Sovereign Immunity Act, are to be interpreted consistently, as they deal with indistinguishable subject matter.”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
:
Appellant :
:
v. : No. 1272 C.D. 2021
: Argued: November 8, 2023
J.S., Sr. and C.S., Administrators :
of the Estate of J.S. :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: December 21, 2023
The City of Philadelphia (City) appeals with permission the
interlocutory order of the Philadelphia County Court of Common Pleas (trial court)1
1
Section 702(b) of the Judicial Code provides, in pertinent part:
(b) Interlocutory appeals by permission.--When a court . . . in
making an interlocutory order in a matter in which its final order
would be within the jurisdiction of an appellate court, shall be of the
opinion that such order involves a controlling question of law as to
which there is substantial ground for difference of opinion and that
an immediate appeal from the order may materially advance the
(Footnote continued on next page…)
overruling the City’s preliminary objections (POs) to the Complaint filed by J.S.
(Prisoner)2 against the City, John Does 1-20, and Jane Does 1-20 (collectively, Doe
Defendants), who were employees of the Philadelphia Department of Prisons. We
reverse and remand.
On July 30, 2019, Prisoner was arrested and was ultimately remanded
to the Curran-Fromhold Correctional Facility (CFCF) in the City. In his Complaint,
Prisoner alleges that the Doe Defendants entered his holding cell at the CFCF and
assaulted him by “pushing, punching, kicking, stomping, throwing and/or striking
him about the head, body, and face, as well as using a foreign object in an attempt
to sodomize [him].” Reproduced Record (R.R.) at 29a. Specifically, Prisoner
alleged that “[d]uring said assault, [he] was subjected to indecent contact, to wit, the
use of an unknown object that was forced into and used to puncture [his] buttock,”
that “[t]his action was done for the purpose of arousing or gratifying the sexual desire
of one or more persons and without [his] consent, or for the purpose of exercis[ing]
perverse domination and control,” and that “[t]his action was done for the purpose
of humiliating, degrading or harassing [him] because he was a homosexual.” Id. at
ultimate termination of the matter, it shall so state in such order. The
appellate court may thereupon, in its discretion, permit an appeal to
be taken from such interlocutory order.
42 Pa. C.S. §702(b); see also Pa.R.A.P. 1311(a)(1) (“An appeal may be taken by permission from
an interlocutory order . . . certified under 42 Pa. C.S. §702(b) . . . .”); Pa.R.A.P. 1311(b)
(“Permission to appeal from an interlocutory order listed in paragraph (a) may be sought by filing
a petition for permission to appeal with the prothonotary of the appellate court within 30 days after
entry of such order . . . .”).
2
By November 20, 2023 Order, the Application to Substitute Party Pursuant to Pa.R.A.P.
502(a) (Application to Substitute) filed by J.S., Sr. and C.S., Administrators of the Estate of J.S.
(Administrators), was granted; Administrators were substituted as parties for Prisoner; and the
caption in this matter was amended to reflect this substitution. Nevertheless, for the sake of clarity,
we will refer to Administrators as Prisoner throughout this memorandum opinion.
2
28a. Prisoner sought damages from the City “pursuant to [Section 8542(b)(9) of the
statute commonly referred to as the Political Subdivision Tort Claims Act (Tort
Claims Act)3] . . . insofar as [Prisoner] was sexually assaulted by agents of the [City]
3
42 Pa. C.S. §8542(b)(9). In general, Section 8541 of the Tort Claims Act provides:
Except as otherwise provided in this subchapter, no local agency
shall be liable for any damages on account of any injury to a person
or property caused by any act of the local agency or an employee
thereof or any other person.
42 Pa. C.S. §8541.
However, Section 8542(b)(9) states:
(b) Acts which may impose liability.--The following acts by a
local agency or any of its employees may result in the imposition of
liability on a local agency:
***
(9) Sexual abuse.--Conduct which constitutes an offense
enumerated under [S]ection 5551(7) [of the Judicial Code] (relating
to no limitation applicable) if the injuries to the plaintiff were caused
by actions or omissions of the local agency which constitute
negligence.
In turn, Section 5551(7) of the Judicial Code provides, in pertinent part:
A prosecution for the following offenses may be commenced at any
time:
***
(7) An offense under any of the following provisions of 18 Pa. C.S.
(relating to crimes and offenses), or a conspiracy or solicitation to
commit an offense under any of the following provisions of 18
Pa. C.S. if the offense results from the conspiracy or solicitation, if
the victim was under 18 years of age at the time of the offense:
(Footnote continued on next page…)
3
working in their official capacities.” Id. at 32a. Prisoner also asserted claims of
battery and civil conspiracy against the Doe Defendants. See R.R. at 29a-32a.
On August 3, 2021, the City filed POs to the count in the Complaint
asserting a claim against it for sexual assault alleging, inter alia, that the sexual abuse
waiver in Section 8542(b)(9) of the Tort Claims Act is inapplicable because it is
limited to plaintiffs who were minors at the time of the assault. See R.R. at 39a, 43a-
44a.
On October 6, 2021, the trial court entered an order overruling the
City’s POs. On October 21, 2021, the trial court modified its order to conform to
the requirements of Section 702(b) of the Judicial Code, permitting the filing of an
appeal from an interlocutory order. See R.R. at 18a-19a.4
On November 19, 2021, the City filed the instant petition for permission
to appeal the trial court’s order in this Court. On January 19, 2022, we issued an
Order granting the City’s petition for permission to appeal the trial court’s order.
Specifically, our Order granted consideration of the following issue:
***
Section 3123 (relating to involuntary deviate sexual intercourse).
***
Section 3124.2 (relating to institutional sexual assault).
42 Pa. C.S. §5551(7) (emphasis added).
4
In reviewing a trial court’s order sustaining or overruling preliminary objections, our
“review is limited to determining whether that court committed an error of law or abused its
discretion.” East Lampeter Township v. County of Lancaster, 696 A.2d 884, 886 (Pa. Cmwlth.
1997). To sustain preliminary objections, “it must appear with certainty that the law will not permit
recovery and, where any doubt exists as to whether the preliminary objections should be sustained,
that doubt should be resolved by a refusal to sustain them.” Peerless Publications, Inc. v. County
of Montgomery, 656 A.2d 547, 550 (Pa. Cmwlth. 1995).
4
Where the new sexual assault exception in Section
8542(b)(9) of . . . [the Tort Claims Act] . . . incorporates a
statutory provision that only applies to offenses committed
against minors, and the victim was an adult at the time of
the alleged assault, did the trial court err in denying [the
City’s POs] to the [C]omplaint?
Cmwlth. Ct. 1/19/22 Order.
In the Pa.R.A.P. 1925(a) opinion filed in support of its order denying
the City’s POs, the trial court explained:
The interpretation of governmental immunity
proposed by [Prisoner] does not comport with the laws of
our Commonwealth. As [the City] notes throughout its
briefs before the lower court, the legislative history of the
November 2019 amendments makes clear the new sexual
assault exception found at Section 8542(b)(9) is “limited
to victims under the age of eighteen at the time of
occurrence.” Indeed, the lower court is bound to strictly
construe exceptions to immunity. Lockwood v. City of
Pittsburgh Center, 751 A.2d 1136, 1139 (Pa. 2000). [The
City] correctly observes the heading of Section 5551(7)
requires that the “victim [be] under 18 years of age” at the
time of the offense in order to have no limitation for
prosecution. Here, the lower court must concur with [the
City] in requesting the lower court’s decision should be
reversed on appeal. [Prisoner] invites the lower court to
ignore Section 5551(7)’s heading and incorporate the “list,
thereby disregarding the purpose of the legislation.” It is
an invitation the trial court must now decline. The General
Assembly passed Section 8542(b)(9) and specifically
referenced Section 5551(7); the General Assembly did not
select at random a list of sexual offenses that waive
governmental immunity. Instead, a review of the offenses
from Section 5551(7) indicates the General Assembly’s
intent to protect only minor victims; instead, Section
8542(b)(9) could have included the list of offenses at
Section 5552(b.l),[5] which contains a list of offenses
5
42 Pa. C.S. §5552(b.1). Section 5552(b.1) of the Judicial Code states, in pertinent part:
(Footnote continued on next page…)
5
nearly identical to that of Section 5551(7), but the
limitation of time reflected in Section 5552(b.l) applies to
victims over the age of eighteen.
In a substantially similar case, the Commonwealth
Court examined a complaint wherein an adult plaintiff
complained that Department of Corrections staff touched
him in a sexual manner and that he was entitled to recovery
because it fell within the sexual assault exception provided
by Section 8522[(b)(10) of the statute commonly referred
to as the Sovereign Immunity Act.6] In the newly-
established 2019 sovereign immunity provisions under
Section 8522, actions are permitted for conduct
(b.1) Major sexual offenses--Except as provided in [S]ection
5551(7) (relating to no limitation applicable), a prosecution for any
of the following offenses under Title 18 must be commenced within
12 years after it is committed:
***
Section 3123 (relating to involuntary deviate sexual intercourse).
***
Section 3124.2 (relating to institutional sexual assault).
(Emphasis added.)
6
42 Pa. C.S. §8522(b)(10). Section 8522(b)(10) waives sovereign immunity for claims
based on the sexual assault of minors stating, in relevant part:
(b) Acts which may impose liability.--The following acts by a
Commonwealth party may result in the imposition of liability on the
Commonwealth and the defense of sovereign immunity shall not be
raised to claims for damages caused by:
***
(10) Sexual abuse.--Conduct which constitutes an offense
enumerated under [S]ection 5551(7) (relating to no limitation
applicable) if the injuries to the plaintiff were caused by actions or
omissions of the Commonwealth party which constitute negligence.
6
“constituting certain criminal offenses against persons
under the age of 18, ‘if the injuries to the plaintiff were
caused by actions or omissions of the Commonwealth
party which constitutes negligence.’” Caldwell v.
Pennsylvania Dep[artmen]t of Corrections [(Pa. Cmwlth.,
365 C.D. 2020, filed March 31, 2021), appeal denied, 271
A.3d 1284 (Pa. 2022)]. Indeed, the Commonwealth Court
found the adult victim’s allegations of sexual assault were
not applicable under Section 8522(b)(10) because the
plaintiff was “not a minor.” See Caldwell, [slip op. at] 12.
Therefore, a previous panel of the Commonwealth Court
expressly found that Section 8522 did not apply to
plaintiffs over the age of eighteen. Here, the lower court
foresees no reason the Commonwealth Court will now
depart from precedent; albeit with the distinction that the
Caldwell Court addressed the application of the sexual
assault waiver and sovereign immunity.
R.R. at 7a-8a (emphasis added and citations to record and footnote omitted).
As a result, the trial court concluded that it “erred when it overruled
[the City’s POs]” because “[t]he waiver of governmental immunity for sexual
assaults, as referenced in Section 8542(b)(9), should apply only to victims below the
age of eighteen.” R.R. at 9a. Accordingly, the trial court “respectfully requests”
that its order overruling the City’s POs “be reversed on appeal” by this Court Id.
Initially, as the Pennsylvania Supreme Court has explained:
As this issue involves the interpretation of a statute,
we necessarily begin our analysis by considering the
Statutory Construction Act [of 1972 (Statutory
Construction Act), 1 Pa. C.S. §§1501-1991]. The
objective of all interpretation and construction of statutes
is to determine and effectuate the intention of the
legislature. Id. [] §1921(a). The best indication of the
General Assembly’s intent is the plain language of the
statute. When the words of a statute are clear and
unambiguous, we may not look beyond the plain meaning
of the statute “under the pretext of pursuing its spirit.” 1
Pa. C.S. §1921(b). Consequently, only when the words of
a statute are ambiguous should a court seek to ascertain the
7
intent of the General Assembly through consideration of
the various factors found in Section 1921[(c)] of the
Statutory Construction Act. 1 Pa. C.S. §1921(c) (setting
forth various considerations to be employed to discern the
intent of the legislature). Finally, in interpreting the [Tort
Claims Act], exceptions to governmental immunity must
be narrowly construed.
Brewington v. City of Philadelphia, 199 A.3d 348, 354-55 (Pa. 2018) (citations
omitted).
As outlined above, the trial court correctly concluded that its order
overruling the POs should be reversed with respect to the sexual assault claim
against the City because Prisoner was not a minor at the time of the alleged assault.
By its plain terms, Section 8542(b)(9) of the Tort Claims Act specifically
incorporates the provisions of Section 5551(7) of the Judicial Code and, by its plain
terms, Section 5551(7) is specifically limited to crimes involving a “victim [who]
was under eighteen years of age at the time of the offense.” Caldwell is persuasive
authority as an unreported panel decision of this Court,7 and no convincing reason
has been advanced to distinguish its application to the City’s immunity in this case.
See id.; see also Finn v. City of Philadelphia, 664 A.2d 1342, 1344 (Pa. 1995)
(“Moreover, this [C]ourt has held that the two statutes dealing with governmental
and sovereign immunities, viz., the [Tort Claims Act] and the Sovereign Immunity
Act, are to be interpreted consistently, as they deal with indistinguishable subject
matter.”) (citations omitted); Jean v. City of Philadelphia, 604 F. Supp. 3d 271, 275
(E.D. Pa. 2022) (“[The p]laintiff’s proposed interpretation of the sexual abuse
exception is not a plain reading of the statute. The age qualifier that [the p]laintiff
attempts to omit from [S]ection 5551(7) is essential to what constitutes an ‘offense’
7
See Pa.R.A.P. 126(b)(1)-(2) (“As used in this rule, ‘non-precedential decision’ refers to
. . . an unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008.
Non-precedential decisions . . . may be cited for their persuasive value.”).
8
under that section.”).8 As a result, as requested, the trial court’s order in this matter
will be reversed, and the case will be remanded to that court to sustain the City’s
POs and to dismiss the count in the Complaint against the City pursuant to the
provisions of the Tort Claims Act.9
Accordingly, the trial court’s order is reversed, and the matter is
remanded to the trial court for proceedings consistent with the foregoing
memorandum opinion.
MICHAEL H. WOJCIK, Judge
8
As our Supreme Court has observed:
The Commonwealth Court was not incorrect in observing
that the pronouncements of the lower federal courts have only
persuasive, not binding, effect on the courts of this Commonwealth-
although we certainly are bound by the decisions of the U.S.
Supreme Court on questions of federal law. We are not constrained
to accept the reasoning of the lower federal courts merely because
those courts addressed an issue before a Pennsylvania state court had
an opportunity to do so.
In re Stevenson, 40 A.3d 1212, 1221 (Pa. 2012) (citation omitted).
9
Based on our disposition, we are not addressing any claim that the sexual abuse was an
intentional tort that was committed outside the scope of the Doe Defendants’ employment duties.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
:
Appellant :
:
v. : No. 1272 C.D. 2021
:
J.S., Sr. and C.S., Administrators :
of the Estate of J.S. :
ORDER
AND NOW, this 21st day of December, 2023, the order of the
Philadelphia County Court of Common Pleas (trial court) dated October 21, 2021,
is REVERSED, and the matter is REMANDED to the trial court for proceedings
consistent with the attached memorandum opinion.
Jurisdiction is relinquished.
__________________________________
MICHAEL H. WOJCIK, Judge