Act of Dec. 18, 2013,P.L. 1170, No. 108 Cl. 23 - DOMESTIC RELATIONS CODE (23 PA.C.S.) - EXCLUSIONS FROM CHILD ABUSE, DISPOSITION OF FOUNDED AND INDICATED REPORTS, AMENDMENT OR EXPUNCTION OF INFORMATION, INVESTIGATION OF REPORTS AND EVIDENCE IN COURT PROCEEDINGS
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DOMESTIC RELATIONS CODE (23 PA.C.S.) - EXCLUSIONS FROM CHILD ABUSE, DISPOSITION OF FOUNDED AND INDICATED REPORTS, AMENDMENT OR EXPUNCTION OF INFORMATION, INVESTIGATION OF REPORTS AND EVIDENCE IN COURT PROCEEDINGS
Act of Dec. 18, 2013,
P.L. 1170,
No. 108
Cl. 23
Session of 2013
No. 2013-108
HB 726
AN ACT
Amending Title 23 (Domestic Relations) of the Pennsylvania Consolidated Statutes, in child protective services, further providing for definitions; providing for exclusions from child abuse; and further providing for disposition of founded and indicated reports, for amendment or expunction of information, for investigation of reports and for evidence in court proceedings.
The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:
Section 1.
The definitions of "child," "founded report," "indicated report," "nonaccidental," "recent acts or omissions," "serious physical injury" and "sexual abuse or exploitation" in section 6303(a) of Title 23 of the Pennsylvania Consolidated Statutes are amended, subsection (a) is amended by adding definitions, subsection (b) is amended and the section is amended by adding subsections to read:
§ 6303.
Definitions.
(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:
* * *
"Bodily injury."
Impairment of physical condition or substantial pain.
"Child."
[Includes a newborn.]
An individual under 18 years of age.
* * *
"Founded report."
[A child abuse report made pursuant to this chapter if there has been any judicial adjudication based on a finding that a child who is a subject of the report has been abused, including the entry of a plea of guilty or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse.]
A child abuse report involving a perpetrator that
is made pursuant to this chapter, if any of the following
applies:
(1)
There has been a judicial adjudication based on a finding that a child who is a subject of the report has been abused and the adjudication involves the same factual circumstances involved in the allegation of child abuse. The judicial adjudication may include any of the following:
(i)
The entry of a plea of guilty or nolo contendere.
(ii)
A finding of guilt to a criminal charge.
(iii)
A finding of dependency under 42 Pa.C.S. § 6341 (relating to adjudication) if the court has entered a finding that a child who is the subject of the report has been abused.
(iv)
A finding of delinquency under 42 Pa.C.S. § 6341 if the court has entered a finding that the child who is the subject of the report has been abused by the child who was found to be delinquent.
(2)
There has been an acceptance into an accelerated rehabilitative disposition program and the reason for the acceptance involves the same factual circumstances involved in the allegation of child abuse.
(3)
There has been a consent decree entered in a juvenile proceeding under 42 Pa.C.S. Ch. 63 (relating to juvenile matters), the decree involves the same factual circumstances involved in the allegation of child abuse and the terms and conditions of the allegation include an acknowledgment, admission or finding that a child who is the subject of the report has been abused by the child who is alleged to be delinquent.
(4)
A final protection from abuse order has been granted under section 6108 (relating to relief), when the child who is a subject of the report is one of the individuals protected under the protection from abuse order and:
(i)
only one individual is charged with the abuse in the protection from abuse action;
(ii)
only that individual defends against the charge;
(iii)
the adjudication involves the same factual circumstances involved in the allegation of child abuse; and
(iv)
the protection from abuse adjudication finds that the child abuse occurred.
* * *
"Indicated report."
[A child abuse report made pursuant to this chapter if an investigation by the county agency or the Department of Public Welfare determines that substantial evidence of the alleged abuse exists based on any of the following:
(1)
Available medical evidence.
(2)
The child protective service investigation.
(3)
An admission of the acts of abuse by the perpetrator.]
(1)
Subject to paragraphs (2) and (3), a report of child abuse made pursuant to this chapter if an investigation by the Department of Public Welfare or county agency determines that substantial evidence of the alleged abuse by a perpetrator exists based on any of the following:
(i)
Available medical evidence.
(ii)
The child protective service investigation.
(iii)
An admission of the acts of abuse by the perpetrator.
(2)
A report may be indicated under paragraph (1)(i) or (ii) for any child who is the victim of child abuse, regardless of the number of alleged perpetrators.
(3)
A report may be indicated under paragraph (1)(i) or (ii) listing the perpetrator as "unknown" if substantial evidence of abuse by a perpetrator exists, but the department or county agency is unable to identify the specific perpetrator.
* * *
"Intentionally."
The term shall have the same meaning as provided in 18 Pa.C.S. § 302 (relating to general requirements of culpability).
"Knowingly."
The term shall have the same meaning as
provided in 18 Pa.C.S.
§
302 (relating to general requirements
of culpability).
* * *
["Nonaccidental."
An injury that is the result of an intentional act that is committed with disregard of a substantial and unjustifiable risk.]
"Parent."
A biological parent, adoptive parent or legal guardian.
* * *
"Recent act."
Any act committed within two years of the date of the report to the Department of Public Welfare or county agency.
"Recent [acts or omissions."
Acts or omissions]
act or
failure to act."
Any act or failure to act
committed within two years of the date of the report to the Department of Public Welfare or county agency.
"Recklessly."
The term shall have the same meaning as provided in 18 Pa.C.S. § 302 (relating to general requirements of culpability).
* * *
["Serious physical injury."
An injury that:
(1)
causes a child severe pain; or
(2)
significantly impairs a child's physical functioning, either temporarily or permanently.]
"Serious physical neglect."
Any of the following when committed by a perpetrator that endangers a child's life or health, threatens a child's well-being, causes bodily injury or impairs a child's health, development or functioning:
(1)
A repeated, prolonged or unconscionable egregious failure to supervise a child in a manner that is appropriate considering the child's developmental age and abilities.
(2)
The failure to provide a child with adequate essentials of life, including food, shelter or medical care.
["Sexual abuse or exploitation."
Any of the following:
(1)
The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage in sexually explicit conduct.
(2)
The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage in simulation of sexually explicit conduct for the purpose of producing visual depiction, including photographing, videotaping, computer depicting and filming.
(3)
Any of the following offenses committed against a child:
(i)
Rape.
(ii)
Sexual assault.
(iii)
Involuntary deviate sexual intercourse.
(iv)
Aggravated indecent assault.
(v)
Molestation.
(vi)
Incest.
(vii)
Indecent exposure.
(viii)
Prostitution.
(ix)
Sexual abuse.
(x)
Sexual exploitation.]
"Sexual abuse or exploitation."
Any of the following:
(1)
The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage in sexually explicit conduct, which includes, but is not limited to, the following:
(i)
Looking at the sexual or other intimate parts of a child or another individual for the purpose of arousing or gratifying sexual desire in any individual.
(ii)
Participating in sexually explicit conversation either in person, by telephone, by computer or by a computer-aided device for the purpose of sexual stimulation or gratification of any individual.
(iii)
Actual or simulated sexual activity or nudity for the purpose of sexual stimulation or gratification of any individual.
(iv)
Actual or simulated sexual activity for the purpose of producing visual depiction, including photographing, videotaping, computer depicting or filming.
This paragraph does not include consensual activities between a child who is 14 years of age or older and another person who is 14 years of age or older and whose age is within four years of the child's age.
(2)
Any of the following offenses committed against a child:
(i)
Rape as defined in 18 Pa.C.S. § 3121 (relating to rape).
(ii)
Statutory sexual assault as defined in 18 Pa.C.S. § 3122.1 (relating to statutory sexual assault).
(iii)
Involuntary deviate sexual intercourse as defined in 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse).
(iv)
Sexual assault as defined in 18 Pa.C.S. § 3124.1 (relating to sexual assault).
(v)
Institutional sexual assault as defined in 18 Pa.C.S. § 3124.2 (relating to institutional sexual assault).
(vi)
Aggravated indecent assault as defined in 18 Pa.C.S. § 3125 (relating to aggravated indecent assault).
(vii)
Indecent assault as defined in 18 Pa.C.S. § 3126 (relating to indecent assault).
(viii)
Indecent exposure as defined in 18 Pa.C.S. § 3127 (relating to indecent exposure).
(ix)
Incest as defined in 18 Pa.C.S. § 4302 (relating to incest).
(x)
Prostitution as defined in 18 Pa.C.S. § 5902 (relating to prostitution and related offenses).
(xi)
Sexual abuse as defined in 18 Pa.C.S. § 6312 (relating to sexual abuse of children).
(xii)
Unlawful contact with a minor as defined in 18 Pa.C.S. § 6318 (relating to unlawful contact with minor).
(xiii)
Sexual exploitation as defined in 18 Pa.C.S. § 6320 (relating to sexual exploitation of children).
* * *
[(b)
Child abuse.--
(1)
The term "child abuse" shall mean any of the following:
(i)
Any recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age.
(ii)
An act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or sexual exploitation of a child under 18 years of age.
(iii)
Any recent act, failure to act or series of such acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age.
(iv)
Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide essentials of life, including adequate medical care, which endangers a child's life or development or impairs the child's functioning.
(2)
No child shall be deemed to be physically or mentally abused based on injuries that result solely from environmental factors that are beyond the control of the parent or person responsible for the child's welfare, such as inadequate housing, furnishings, income, clothing and medical care.
(3)
If, upon investigation, the county agency determines that a child has not been provided needed medical or surgical care because of seriously held religious beliefs of the child's parents, guardian or person responsible for the child's welfare, which beliefs are consistent with those of a bona fide religion, the child shall not be deemed to be physically or mentally abused. The county agency shall closely monitor the child and shall seek court-ordered medical intervention when the lack of medical or surgical care threatens the child's life or long-term health. In cases involving religious circumstances, all correspondence with a subject of the report and the records of the Department of Public Welfare and the county agency shall not reference "child abuse" and shall acknowledge the religious basis for the child's condition, and the family shall be referred for general protective services, if appropriate.]
(b.1)
Child abuse.--The term "child abuse" shall mean intentionally, knowingly or recklessly doing any of the following:
(1)
Causing bodily injury to a child through any recent act or failure to act.
(2)
Fabricating, feigning or intentionally exaggerating or inducing a medical symptom or disease which results in a potentially harmful medical evaluation or treatment to the child through any recent act.
(3)
Causing or substantially contributing to serious mental injury to a child through any act or failure to act or a series of such acts or failures to act.
(4)
Causing sexual abuse or exploitation of a child through any act or failure to act.
(5)
Creating a reasonable likelihood of bodily injury to a child through any recent act or failure to act.
(6)
Creating a likelihood of sexual abuse or exploitation of a child through any recent act or failure to act.
(7)
Causing serious physical neglect of a child.
(8)
Engaging in any of the following recent acts:
(i)
Kicking, biting, throwing, burning, stabbing or cutting a child in a manner that endangers the child.
(ii)
Unreasonably restraining or confining a child, based on consideration of the method, location or the duration of the restraint or confinement.
(iii)
Forcefully shaking a child under one year of age.
(iv)
Forcefully slapping or otherwise striking a child under one year of age.
(v)
Interfering with the breathing of a child.
(vi)
Causing a child to be present at a location while a violation of 18 Pa.C.S. § 7508.2 (relating to operation of methamphetamine laboratory) is occurring, provided that the violation is being investigated by law enforcement.
(vii)
Leaving a child unsupervised with an individual, other than the child's parent, who the actor knows or reasonably should have known:
(A)
Is required to register as a Tier II or Tier III sexual offender under 42 Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual offenders), where the victim of the sexual offense was under 18 years of age when the crime was committed.
(B)
Has been determined to be a sexually violent predator under 42 Pa.C.S. § 9799.24 (relating to assessments) or any of its predecessors.
(C)
Has been determined to be a sexually violent delinquent child as defined in 42 Pa.C.S. § 9799.12 (relating to definitions).
(9)
Causing the death of the child through any act or failure to act.
(c)
Restatement of culpability.--Conduct that causes injury or harm to a child or creates a risk of injury or harm to a child shall not be considered child abuse if there is no evidence that the person acted intentionally, knowingly or recklessly when causing the injury or harm to the child or creating a risk of injury or harm to the child.
(d)
Child abuse exclusions.--The term "child abuse" does not include any conduct for which an exclusion is provided in section 6304 (relating to exclusions from child abuse).
Section 2.
Title 23 is amended by adding a section to read:
§ 6304.
Exclusions from child abuse.
(a)
Environmental factors.--No child shall be deemed to be physically or mentally abused based on injuries that result solely from environmental factors, such as inadequate housing, furnishings, income, clothing and medical care, that are beyond the control of the parent or person responsible for the child's welfare with whom the child resides. This subsection shall not apply to any child-care service as defined in this chapter, excluding an adoptive parent.
(b)
Practice of religious beliefs.--If, upon investigation, the county agency determines that a child has not been provided needed medical or surgical care because of sincerely held religious beliefs of the child's parents or relative within the third degree of consanguinity and with whom the child resides, which beliefs are consistent with those of a bona fide religion, the child shall not be deemed to be physically or mentally abused. In such cases the following shall apply:
(1)
The county agency shall closely monitor the child and the child's family and shall seek court-ordered medical intervention when the lack of medical or surgical care threatens the child's life or long-term health.
(2)
All correspondence with a subject of the report and the records of the department and the county agency shall not reference child abuse and shall acknowledge the religious basis for the child's condition.
(3)
The family shall be referred for general protective services, if appropriate.
(4)
This subsection shall not apply if the failure to provide needed medical or surgical care causes the death of the child.
(5)
This subsection shall not apply to any child-care service as defined in this chapter, excluding an adoptive parent.
(c)
Use of force for supervision, control and safety purposes.--Subject to subsection (d), the use of reasonable force on or against a child by the child's own parent or person responsible for the child's welfare shall not be considered child abuse if any of the following conditions apply:
(1)
The use of reasonable force constitutes incidental, minor or reasonable physical contact with the child or other actions that are designed to maintain order and control.
(2)
The use of reasonable force is necessary:
(i)
to quell a disturbance or remove the child from the scene of a disturbance that threatens physical injury to persons or damage to property;
(ii)
to prevent the child from self-inflicted physical harm;
(iii)
for self-defense or the defense of another individual; or
(iv)
to obtain possession of weapons or other dangerous objects or controlled substances or paraphernalia that are on the child or within the control of the child.
(d)
Rights of parents.--Nothing in this chapter shall be construed to restrict the generally recognized existing rights of parents to use reasonable force on or against their children for the purposes of supervision, control and discipline of their children. Such reasonable force shall not constitute child abuse.
(e)
Participation in events that involve physical contact with child.--An individual participating in a practice or competition in an interscholastic sport, physical education, a recreational activity or an extracurricular activity that involves physical contact with a child does not, in itself, constitute contact that is subject to the reporting requirements of this chapter.
(f)
Child-on-child contact.--
(1)
Harm or injury to a child that results from the act of another child shall not constitute child abuse unless the child who caused the harm or injury is a perpetrator.
(2)
Notwithstanding paragraph (1), the following shall apply:
(i)
Acts constituting any of the following crimes against a child shall be subject to the reporting requirements of this chapter:
(A)
rape as defined in 18 Pa.C.S. § 3121 (relating to rape);
(B)
involuntary deviate sexual intercourse as defined in 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse);
(C)
sexual assault as defined in 18 Pa.C.S. § 3124.1 (relating to sexual assault);
(D)
aggravated indecent assault as defined in 18 Pa.C.S. § 3125 (relating to aggravated indecent assault);
(E)
indecent assault as defined in 18 Pa.C.S. § 3126 (relating to indecent assault); and
(F)
indecent exposure as defined in 18 Pa.C.S. § 3127 (relating to indecent exposure).
(ii)
No child shall be deemed to be a perpetrator of child abuse based solely on physical or mental injuries caused to another child in the course of a dispute, fight or scuffle entered into by mutual consent.
(iii)
A law enforcement official who receives a report of suspected child abuse is not required to make a report to the department under section 6334(a) (relating to disposition of complaints received), if the person allegedly responsible for the child abuse is a nonperpetrator child.
(g)
Defensive force.--Reasonable force for self-defense or the defense of another individual, consistent with the provisions of 18 Pa.C.S.
§§
505 (relating to use of force in self-protection) and 506 (relating to use of force for the protection of other persons), shall not be considered child abuse.
Section 3.
Section 6338(a) of Title 23 is amended to read:
§ 6338.
Disposition of founded and indicated reports.
(a)
General rule.--When a report of suspected child abuse or a report under Subchapter C.1 (relating to students in public and private schools) is determined by the appropriate county agency to be a founded report or an indicated report, the information concerning that report of suspected child abuse shall be expunged immediately from the pending complaint file, and an appropriate entry shall be made in the Statewide central register. [Notice of the determination must be given to the subjects of the report, other than the abused child, and to the parent or guardian of the affected child or student along with an explanation of the implications of the determination. Notice given to perpetrators of child abuse and to school employees who are subjects of indicated reports for school employees or founded reports for school employees shall include notice that their ability to obtain employment in a child-care facility or program or a public or private school may be adversely affected by entry of the report in the Statewide central register. The notice shall also inform the recipient of his right, within 45 days after being notified of the status of the report, to appeal an indicated report, and his right to a hearing if the request is denied.]
Notice of the determination that a report is a founded
, indicated or unfounded
report shall be made as provided in section 6368(f) (relating to investigation of reports).
* * *
Section 4.
Section 6341(a), (b) and (c) of Title 23 are amended and the section is amended by adding a subsection to read:
§ 6341.
Amendment or expunction of information.
(a)
General rule.--[At any time:]
Notwithstanding section 6338.1 (relating to expunction of information of perpetrator who was under 18 years of age when child abuse was committed):
(1)
[The]
At any time, the
secretary may amend or expunge any record
in the Statewide database
under this chapter upon good cause shown and notice to the appropriate subjects of the report.
The request shall be in writing in a
manner prescribed by the department. For purposes of this paragraph, good cause shall include, but is not limited to,
the following:
(i)
Newly discovered evidence that an indicated report of child abuse is inaccurate or is being maintained in a manner inconsistent with this chapter.
(ii)
A determination that the perpetrator in an indicated report of abuse no longer represents a risk of child abuse and that no significant public purpose would be served by the continued listing of the person as a perpetrator in the Statewide database.
(2)
Any person named as a perpetrator, and any school employee named, in an indicated report of child abuse may, within [45]
90
days of being notified of the status of the report, request
an administrative review by, or appeal and request a hearing before,
the secretary to amend or expunge an indicated report on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with this chapter.
The request shall be in writing in a manner prescribed by the department.
(3)
Within 60 days of a request under paragraph (1) or a request for administrative review under paragraph (2), the department shall send notice of the secretary's decision.
(b)
Review of grant of request.--If the secretary grants the request under subsection (a)(2), the Statewide [central register]
database
, appropriate county agency, appropriate law enforcement officials and all subjects shall be so advised of the decision. The county agency and any subject have [45]
90
days in which to file an administrative appeal with the secretary. If an administrative appeal is received, the secretary or his designated agent shall schedule a hearing pursuant to Article IV of the act of June 13, 1967 (P.L.31, No.21), known as the Public Welfare Code, [and] attending departmental regulations. If no administrative appeal is received within the designated time period, the Statewide [central register]
database
shall comply with the decision of the secretary and advise the county agency to amend or expunge the information in their records so that the records are consistent at both the State and local levels.
(c)
Review of refusal of request.--[If the secretary refuses the request under subsection (a)(2) or does not act within a reasonable time, but in no event later than 30 days after receipt of the request, the perpetrator or school employee shall have the right to a hearing before the secretary or a designated agent of the secretary to determine whether the summary of the indicated report in the Statewide central register should be amended or expunged on the grounds that it is inaccurate or that it is being maintained in a manner inconsistent with this chapter. The perpetrator or school employee shall have 45 days from the date of the letter giving notice of the decision to deny the request in which to request a hearing.]
Subject to subsection (c.1), if the secretary refuses a request under subsection (a)(1) or a request for administrative review under subsection (a)(2), or does not act within the prescribed time, the perpetrator or school employee shall have the right to appeal and request a hearing before the secretary to amend or
expunge an indicated report on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with this chapter. The request for hearing must be made within 90 days of
notice of the results of the investigation.
The appropriate county agency and appropriate law enforcement officials shall be given notice of the hearing. The burden of proof in the hearing shall be on the appropriate county agency. The department shall assist the county agency as necessary.
(c.1)
Founded reports.--A person named as a perpetrator in a founded report of child abuse must provide to the department a court order indicating that the underlying adjudication that formed the basis of the founded report has been reversed or vacated.
* * *
Section 5.
Section 6368 of Title 23 is amended by adding subsections to read:
§ 6368.
Investigation of reports.
* * *
(e)
Review of indicated reports.--A final determination that a report of suspected child abuse is indicated shall be
approved by:
(1)
the county agency administrator or a designee and reviewed by a county agency solicitor, when the county agency is investigating; or
(2)
the secretary or a designee and reviewed by legal counsel for the department, when the department is investigating.
(f)
Final determination.--Immediately upon conclusion of the child abuse investigation, the county agency shall provide the results of its investigation to the department in a manner prescribed by the department. Within three business days of receipt of the results of the investigation from the county agency, the department shall send notice of the final determination to the subjects of the report, other than the abused child. The determination shall include the following information:
(1)
The status of the report.
(2)
The perpetrator's right to request the secretary to amend or expunge the report.
(3)
The right of the subjects of the report to services from the county agency.
(4)
The effect of the report upon future employment opportunities involving children.
(5)
The fact that the name of the perpetrator, the nature of the abuse and the final status of a founded or indicated report will be entered in the Statewide database, if the perpetrator's Social Security number or date of birth are known.
(6)
The perpetrator's right to file an appeal of an indicated finding of abuse pursuant to section 6341 (relating to amendment or expunction of information) within 90 days of the date of notice.
(7)
The perpetrator's right to a fair hearing on the merits on an appeal of an indicated report filed pursuant to section 6341.
(8)
The burden on the investigative agency to prove its case by substantial evidence in an appeal of an indicated report.
(g)
Notice.--Notice under subsection (f) shall constitute mailing of the final determination to the recipient's last known address. The determination is presumed received when not returned by the postal authorities as undeliverable. If the determination is returned as undeliverable, the entry in the Statewide database shall include information that the department was unable to provide notice. No further efforts to provide notice shall be required, except that the department shall resume reasonable efforts to provide notice if new information is received regarding the whereabouts of an individual who is entitled to receive notice under subsection (f).
(h)
Notice to mandated reporter.--If a report was made by a mandated reporter under section 6313 (relating to reporting procedure), the department shall notify the mandated reporter who made the report of suspected child abuse of all of the following within three business days of the department's receipt of the results of the investigation:
(1)
Whether the child abuse report is founded, indicated or unfounded.
(2)
Any services provided, arranged for or to be provided by the county agency to protect the child.
Section 6.
Section 6381 of Title 23 is amended by adding a subsection to read:
§ 6381.
Evidence in court proceedings.
* * *
(e)
Child victims and witnesses.--In addition to the provisions of this section, any consideration afforded to a child victim or witness pursuant to 42 Pa.C.S. Ch. 59 Subch. D (relating to child victims and witnesses) in any prosecution or adjudication shall be afforded to a child in child abuse proceedings in court or in any department administrative hearing pursuant to section 6341.
Section 7.
This act shall take effect December 31, 2014.
APPROVED--The 18th day of December, A.D. 2013.
TOM CORBETT