Trial Engrossment of Amendment A09177 to Senate Bill 0261 P.N. 0631, Regular Session 2017-2018

HOUSE AMENDED

A09177

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

261

Session of

2017

INTRODUCED BY SCARNATI, CORMAN AND GORDNER, JANUARY 30, 2017

AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF

REPRESENTATIVES, AS AMENDED, APRIL 4, 2017

AN ACT

Amending Title 42 (Judiciary and Judicial Procedure) of the

Pennsylvania Consolidated Statutes, in limitation of time,

further providing for SIX MONTHS LIMITATION, FOR infancy,

insanity or imprisonment, for no limitation applicable and

for other offenses; and, in matters affecting government

units, further providing for exceptions to sovereign immunity

and, FOR LIMITATIONS ON DAMAGES, for exceptions to

governmental immunity AND FOR LIMITATIONS ON DAMAGES.

Amending Title 44 (Law and Justice) of the Pennsylvania

Consolidated Statutes, establishing the Truth and Restoration

Commission and the Truth and Restoration Fund and providing

for duties, participation, immunity and barred claims.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The General Assembly finds and declares as

follows:

(1) The Remedies Clause found in section 11 of Article I

of the Constitution of Pennsylvania has been interpreted by

the Pennsylvania Supreme Court to provide a constitutional

guarantee of access to legal remedies and defenses.

(2) The Pennsylvania Supreme Court has interpreted the

Remedies Clause as providing a vested right to accrued

defenses that cannot be infringed upon by subsequent law.

(3) Pursuant to the interpretation by the Pennsylvania

Supreme Court, the General Assembly is constitutionally

precluded from adopting a retroactive change extending a

statute of limitations or invalidating a defense based on a

statute of limitations that has already expired as against a

particular defendant.

(4) Statutes of limitation recognize that the right to

assert a cause of action and the right to assert a defense to

that action are on an equal footing in this Commonwealth.

(5) Statutes of limitation promote diligence and repose,

diminish uncertainty and allow every person to allocate

resources appropriately.

(6) Statutes of limitation promote accurate fact finding

in litigation, as evidence and testimony become degraded or

unavailable over time.

(7) Therefore, it is the intent of the General Assembly

to eliminate statutes of limitation only in rare

circumstances in which delayed discovery of the cause of

action is particularly likely and the right to defend against

the claim is not significantly undermined.

Section 2. Section 5533(b)(2)(i) of Title 42 of the

Pennsylvania Consolidated Statutes is amended and the section is

amended by adding a paragraph to read:

SECTION 2. SECTION 5522 OF TITLE 42 OF THE PENNSYLVANIA

CONSOLIDATED STATUTES IS AMENDED BY ADDING A SUBSECTION TO READ:

§ 5522. SIX MONTHS LIMITATION.

* * *

ACTION OR PROCEEDING BROUGHT UNDER SECTION 8522(B)(10) (RELATING

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TO EXCEPTIONS TO SOVEREIGN IMMUNITY) OR 8542(B)(9) (RELATING TO

EXCEPTIONS TO GOVERNMENTAL IMMUNITY).

SECTION 3. SECTION 5533(B)(2)(I) OF TITLE 42 IS AMENDED TO

READ:

§ 5533. Infancy, insanity or imprisonment.

* * *

(b) Infancy.--

* * *

(2) (i) [If] Except as provided under paragraph (3), if

an individual entitled to bring a civil action arising

from childhood sexual abuse is under 18 years of age at

the time the cause of action accrues, the individual

shall have a period of [12] 32 years after attaining 18

years of age in which to commence an action for damages

regardless of whether the individual files a criminal

complaint regarding the childhood sexual abuse.

* * *

(3) If an individual entitled to bring a civil action

arising from childhood sexual abuse is under 18 years of age

at the time the cause of action accrues, the individual shall

have an unlimited period of time to commence an action for

damages against the following individuals:

(i) The individual who committed the act of

childhood sexual abuse.

(ii) An individual who conspired with the individual

who committed the act of childhood sexual abuse for the

purpose of bringing about the abuse.

(iii) (A) An individual who, having actual

knowledge of the childhood sexual abuse perpetrated

against the individual, failed to prevent any

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subsequent childhood sexual abuse by the same

perpetrator against the same individual by reporting

the abuse to law enforcement officials or to a State

or county child protective services agency during the

victim's minority.

(B) No cause of action shall accrue under this

subparagraph against an individual who was aware that

a report of the childhood sexual abuse had already

been made by another individual or entity to law

enforcement officials or to a State or county child

protective services agency.

Section 3 4. Section 5551 of Title 42 is amended by adding a

paragraph to read:

§ 5551. No limitation applicable.

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 is

facilitated by IF THE OFFENSE RESULTS FROM the conspiracy or

solicitation, if the victim was under 18 years of age at the

time of the offense:

Section 3011(b) (relating to trafficking in individuals).

Section 3012 (relating to involuntary servitude) as it

relates to sexual servitude.

Section 3121 (relating to rape).

Section 3122.1 (relating to statutory sexual assault).

Section 3123 (relating to involuntary deviate sexual

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intercourse).

Section 3124.1 (relating to sexual assault).

Section 3124.2 (relating to institutional sexual

assault).

Section 3125 (relating to aggravated indecent assault).

Section 4302 (relating to incest).

Section 4 5. Section 5552(b.1) and (c)(3) of Title 42 are

amended to read:

§ 5552. Other offenses.

* * *

(b.1) Major sexual offenses.--[A] Except as provided in

section 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 3121 (relating to rape).

Section 3122.1 (relating to statutory sexual assault).

Section 3123 (relating to involuntary deviate sexual

intercourse).

Section 3124.1 (relating to sexual assault).

Section 3124.2(a) and (a.2) (relating to institutional

sexual assault).

Section 3125 (relating to aggravated indecent assault).

Section 4302 (relating to incest).

Section 6312 (relating to sexual abuse of children).

(b) or (b.1) has expired, a prosecution may nevertheless be

commenced for:

* * *

(3) Any sexual offense committed against a minor who is

less than 18 years of age any time up to the later of the

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period of limitation provided by law after the minor has

reached 18 years of age or the date the minor reaches 50

years of age. As used in this paragraph, the term "sexual

offense" means a crime under the following provisions of

Title 18 (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:

[Section 3011(b) (relating to trafficking in

individuals).

Section 3012 (relating to involuntary servitude) as

it relates to sexual servitude.

Section 3121 (relating to rape).

Section 3122.1 (relating to statutory sexual

assault).

Section 3123 (relating to involuntary deviate sexual

intercourse).

Section 3124.1 (relating to sexual assault).

Section 3125 (relating to aggravated indecent

assault).]

Section 3126 (relating to indecent assault).

Section 3127 (relating to indecent exposure).

[Section 4302 (relating to incest).]

Section 4304 (relating to endangering welfare of

children).

Section 6301 (relating to corruption of minors).

Section 6312(b) (relating to sexual abuse of

children).

Section 6320 (relating to sexual exploitation of

children).

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* * *

Section 5. Sections 8522(b) and 8542(b) of Title 42 are

amended by adding paragraphs to read:

SECTION 6. SECTION 8522(B) OF TITLE 42 IS AMENDED BY ADDING

A PARAGRAPH TO READ:

§ 8522. Exceptions to sovereign immunity.

* * *

(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 that constitutes an offense

enumerated under section 5551(7) (relating to no limitation

applicable) if the injuries to the plaintiff were caused by

actions or omissions of the Commonwealth A COMMONWEALTH PARTY

that constitute negligence.

SECTION 7. SECTION 8528 OF TITLE 42 IS AMENDED BY ADDING A

SUBSECTION TO READ:

§ 8528. LIMITATIONS ON DAMAGES.

* * *

(D) EXCLUSIONS.--THIS SECTION SHALL NOT APPLY TO DAMAGES

AWARDED UNDER SECTION 8522(B)(10) (RELATING TO EXCEPTIONS TO

SOVEREIGN IMMUNITY).

SECTION 8. SECTION 8542(B) OF TITLE 42 IS AMENDED BY ADDING

A PARAGRAPH TO READ:

§ 8542. Exceptions to governmental immunity.

* * *

(b) Acts which may impose liability.--The following acts by

a local agency or any of its employees may result in the

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imposition of liability on a local agency:

* * *

(9) Sexual abuse.--Conduct that is proscribed by section

5551(7) (relating to no limitation applicable) if the

claimant establishes that:

(i) the local agency acted in a negligent manner;

and

(ii) the action under subparagraph (i) caused injury

to the claimant.

(9) SEXUAL ABUSE.--CONDUCT THAT CONSTITUTES AN OFFENSE

ENUMERATED UNDER SECTION 5551(7) (RELATING TO NO LIMITATION

APPLICABLE) IF THE INJURIES TO THE PLAINTIFF WERE CAUSED BY

ACTIONS OR OMISSIONS OF THE LOCAL AGENCY THAT CONSTITUTE

NEGLIGENCE.

* * *

SECTION 9. SECTION 8553 OF TITLE 42 IS AMENDED BY ADDING A

SUBSECTION TO READ:

§ 8553. LIMITATIONS ON DAMAGES.

* * *

(E) EXCLUSIONS.--THIS SECTION SHALL NOT APPLY TO DAMAGES

AWARDED UNDER SECTION 8542(B)(9) (RELATING TO EXCEPTIONS TO

GOVERNMENTAL IMMUNITY).

Section 6 10. This act shall apply as follows:

(1) The addition of 42 Pa.C.S. §§ 5533(b)(3), 8522(b)

(10) and 8542(b)(9) shall apply to causes of action which

accrue on or after the effective date of this section.

(2) The amendment or addition of 42 Pa.C.S. §§ 5533(b)

(2)(i) and (3), 5551(7) and 5552(b.1) and (c)(3) shall not be

applied to revive an action that has been barred by an

existing statute of limitations on the effective date of this

A09177 - 8 -

section.

Section 7 11. This act shall take effect immediately.

Section 1. Title 44 of the Pennsylvania Consolidated

Statutes is amended by adding a part to read:

PART V

JUSTICE

Chapter

101. Truth and Restoration

CHAPTER 101

TRUTH AND RESTORATION

Subchapter

A. Preliminary Provisions

B. Administration

C. Program

D. Miscellaneous Provisions

SUBCHAPTER A

PRELIMINARY PROVISIONS

Sec.

10101. Scope of chapter.

10102. Definitions.

§ 10101. Scope of chapter.

This chapter relates to truth and restoration.

§ 10102. Definitions.

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:

"Barred claim." A civil action arising from child sexual

abuse which is statutorily barred prior to the effective date of

this section.

"Child sexual abuse." The term shall have the same meaning

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as "sexual abuse or exploitation" in 23 Pa.C.S. § 6303 (relating

to definitions).

"Commission." The Truth and Restoration Commission

established under section 10111(a) (relating to Truth and

Restoration Commission).

"Fund." The Truth and Restoration Fund established under

section 10115(a) (relating to Truth and Restoration Fund).

"Institution." As follows:

(1) Any of the following:

(i) A corporation, partnership, limited liability

company, business trust or other association.

(ii) A government entity.

(iii) An estate, trust or foundation.

(2) The term does not include a natural person.

"Participating institution." An institution which is

identified by the commission under section 10121(a)(2) (relating

to participating institutions).

"Victim." An individual:

(1) with a credible accusation of child sexual abuse;

(2) whose abusers were concealed by a participating

institution; and

(3) who may not bring a barred claim.

SUBCHAPTER B

ADMINISTRATION

Sec.

10111. Truth and Restoration Commission.

10112. Operation.

10113. Functions.

10114. Administrative Agency Law.

10115. Truth and Restoration Fund.

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§ 10111. Truth and Restoration Commission.

(a) Establishment.--The Truth and Restoration Commission is

established as an independent commission.

(b) Composition.--The commission shall consist of the

following members:

(1) Three members appointed by the Governor.

(2) Two members appointed by the Senate.

(3) Two members appointed by the House of

Representatives.

may serve for an additional consecutive five-year term at the

discretion of the appointing authority.

(d) Professions.--Membership of the commission shall include

at least one individual from each of the following professions:

(1) A licensed attorney.

(2) A certified public accountant.

(3) A licensed psychologist.

(e) Geographic diversity.--Each appointing authority may

consider the geographic diversity of the Commonwealth when

making appointments so as to compose a commission representative

of rural and urban areas as well as various regions of this

Commonwealth.

(f) Compensation.--A commissioner shall be uncompensated but

shall receive reimbursement for actual expenses and mileage.

(g) Vacancy.--If a vacancy on the commission occurs at the

end of a member's term, a member's resignation or the death of a

member, the appointing authority which appointed the departing

member shall appoint a new member to fill the vacancy.

§ 10112. Operation.

(a) Meetings.--The commission shall be subject to 65 Pa.C.S.

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Ch. 7 (relating to open meetings), except that 65 Pa.C.S. §

707(b) and (c) (relating to exceptions to open meetings) shall

not apply. The commission may hold an executive session under 65

Pa.C.S. § 708(a)(5) (relating to executive sessions) for

sensitive material.

(b) Quorum.--A quorum shall consist of four members.

staff of investigators, attorneys, support staff and an

executive director as reasonably necessary to conduct the

efficient work of the commission.

(d) Chairperson.--The members shall annually select a

chairperson from among the members of the commission, who shall

chair meetings of the commission, establish the commission's

meeting agenda and ensure the efficient work of the commission.

§ 10113. Functions.

(a) Primary objective.--The primary objective of the

commission shall be to reveal the:

(1) extent of child sexual abuse involving barred claims

which has occurred within each participating institution and

the degree to which the child sexual abuse involving barred

claims has been concealed within the participating

institution; and

(2) participating institution's compliance with current

laws relating to the protection of minors within the

participating institution.

(b) Secondary objective.--The secondary objective of the

commissi on shall be to establish a procedure by which a victim

shall be equitably compensated by the fund.

(1) The commission shall annually release a public

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report listing each participating institution and the names

of iden tified alleged of fenders, including child sexual

offenders and individuals who intentionally enabled the

concealment or reassignment of a child sexual offender, and

the specific offenses committed. Reports of credible abuse

may be released to the public if the victim authorizes the

release.

(2) The commission shall verify and acknowledge changes

in the operations within a participating institution which

are designed to comply with current laws and ensure the

safety of children. The commission may include its own

commentary as to the effectiveness of the changes.

(3) On or before January 31 of each year, the commission

shall report to the General Assembly on the commission's work

from the previous year and the commission's anticipated work

in the following year. The commission shall answer questions

from the General Assembly concerning the work of the

commission as necessary for the General Assembly to evaluate

the budget needs of the commission.

(d) Notice.--The commission shall transmit notice of

completion of the transfer under section 10115(g) (relating to

Truth and Restoration Fund) to the Legislative Reference Bureau

for publication in the Pennsylvania Bulletin.

(e) Implementation and administration.--The commission shall

i mplement and administer Subchapter C (relating to program).

This subsection includes rulemaking authority.

(f) Requirements prohibited.--The commission may not:

(1) require a participating institution to do anything

except as provided under this chapter, such as demanding a

change in a participating institution's structure or beliefs;

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(2) issue a recommendation to do anything prohibited

under paragraph (1).

(g) Contribution.--The commission shall create formulas

under section 10115(d) and (e) to determine the contribution

from each participating institution to the fund and the amount

of compensation to victims from the fund.

§ 10114. Administrative Agency Law.

The commission shall be subject to 2 Pa.C.S. Chs. 5 Subch. A

(relating to practice and procedure of Commonwealth agencies)

and 7 Subch. A (relating to judicial review of Commonwealth

agency action).

§ 10115. Truth and Restoration Fund.

(a) Establishment.--The Truth and Restoration Fund is

established in the State Treasury.

(b) Sources.--Sources of the fund shall be:

(1) F or the first year, equal contributions transferred

from the budgets of the General Assembly, judiciary and

Attorney General. Amounts transferred under this paragraph

are for the purposes of administration only and may not be

used to compensate victims under section 10123 (relating to

compensation of victims).

(2) Beginning in the second year and e ach year

thereafter, appropriations, not to exceed 10% of the amount

of the money in the fund, until the fund has adequate money

to fund the work of the commission. Amounts appropriated

under this paragraph are for the purposes of administration

only and may not be used to compensate victims under section

10123.

(3) Contributions under this subchapter.

A09177 - 14 -

(4) Return on money in the fund.

(1) compensating victims; and

(2) administration as provided under subsection (b)(1)

and (2).

(d) Formula for contribution from each participating

institution.--

(1) The commission shall create a formula which shall be

used to determine the contribution required from each

participating institution.

(2) The formula shall do all of the following:

(i) Be uniformly applied.

(ii) Take into consideration the extent of the abuse

which the participating institution concealed, the

duration of the concealment and the nature of the

instances of abuse.

(iii) Take into consideration the financial

condition of the participating institution.

(3) The formula should do all of the following:

(i) Account for the degree to which a participating

institution is related to the abuse and concealment, such

as the case of a merged entity if the surviving entity

represents more than just the entity where the abuse

occurred.

(ii) Be designed primarily as a means of

compensation for victims, except that the formula shall

also serve a lesser punitive function. Notwithstanding

the punitive function, the formula should not be designed

so as to force a participating institution into

bankruptcy or to unduly impede a participating

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institution's religious, educational or charitable

endeavors.

(e) Formula for amount of compensation to victims.--

(1) The commission shall create a formula which shall be

used to determine the amount of compensation paid to each

victim.

(2) The formula shall consider the nature and extent of

the abuse suffered, as confirmed by the commission, any prior

award or settlement which the victim may have already

received on the same claim, the total number of victims

claiming compensation and the balance of the available money

within the fund.

(3) When calculating the compensation payments to

victims, the commission should anticipate the near depletion

of the fund.

(f) Expenses.--Expenses for the operation of the commission

shall be paid from the fund.

(g) Balance.--Any balance remaining in the fund after all

compensation payments are made and expenses of the commission

are finalized shall be transferred to the Department of Human

Services to fund child protective services under 23 Pa.C.S. Ch.

63 (relating to child protective services).

(h) Waste.--The commission should prevent the waste of the

fund by mismanagement and excessive expenses.

SUBCHAPTER C

PROGRAM

Sec.

10121. Participating institutions.

10122. Investigations.

10123. Compensation of victims.

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10124. Barred claims.

10125. Immunity.

§ 10121. Participating institutions.

(a) Participation.--

(1) An institution which reasonably believes that the

institution has employed, managed, directed, certified or

aided an individual which may have committed an act of child

sexual abuse may participate in the work of the commission.

(2) To become a participating institution, the governing

body of the institution must send a written notice to the

commission so that the commission receives the notice before

January 1, 2020 . Upon receipt of the written notice, the

commission shall submit a notice identifying the institution

as a participating institution to the Legislative Reference

Bureau for publication in the Pennsylvania Bulletin.

(b) Continuation.--

(1) To continue to be considered a participating

institution, a participating institution must comply with

each reasonable request, subpoena and other demand for

information or other participation as reasonably required by

the commission.

(2) If a participating institution does not comply under

paragraph (1), the commission shall give the participating

institution written notice detailing the noncompliance.

(3) If noncompliance is not remedied within three months

of receipt of the notice under paragraph (2), the commission

may eliminate the institution as a participating institution.

The commission shall submit a notice eliminating the

institution as a participating institution to the Legislative

Reference Bureau for publication in the Pennsylvania

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Bulletin. The commission may not engage in punitive or

disciplinary conduct other than the elimination of the

institution as a participating institution or, for

participating institutions, the assessment of a contribution

to the fund.

decision or demand of the commission to Commonwealth Court,

which shall be the final arbiter of the matter.

(d) Withdrawal.--After December 31, 2019, a participating

institution may not withdraw from participation without the

written approval of the commission. If a participating

institution has withdrawn, the i nstitution may participate once

again at any time prior to January 1, 2020.

(e) Contributions.--Contributions to the fund shall be

mandatory for participation. The commission may enforce payment

as a judgment lien against the participating institution. The

commission shall allow a participating institution to make

contributions over a five-year period, with interest at the

legal rate. The commission may adjust a contribution amount

based on reasonable factors, such as a significant and

unanticipated decline in the financial resources of a

participating institution.

§ 10122. Investigations.

(a) Degree of culpability.--The commission shall evaluate

the degree of culpability for each participating institution for

concealing child sexual abuse. The commission shall consider the

extent of the abuse, the number and nature of the positions of

individuals within the participating institution who knew of the

abuse and the length of time over which the abuse and

concealment occurred.

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(b) Testimony.--

(1) The commission shall, under oath, hear the testimony

of victims, representatives and staff from a participating

institution, accused individuals and other individuals who

may have evidence pertinent to the work of the commission.

(2) The commission may compel testimony and other

evidence through subpoena and may administer an oath to an

individual who offers the evidence. Commission staff may

follow leads and solicit unsworn testimony as necessary to

aid the commission in the commission's investigation and

analysis.

Court to enforce a subpoena or oath under this chapter.

(d) Reporting of crime.--The commission or commission staff

shall report to law enforcement any information obtained through

the commission's work which may be evidence of a reportable

crime.

(e) Authority.-- The commission may not obtain a search

warrant. Commission staff may inspect files and other evidence

in the possession of a participating institution with the

cooperation of the participating institution.

(f) Favoritism.--The commission shall critically evaluate

accusations and defenses so that no party is favored.

§ 10123. Compensation of victims.

The following shall apply:

(1) The commission shall receive requests for

compensation from vict ims and shall make reasonable efforts

to contact possible vic tims who may be identified through the

work of the commission.

(2) To qualify for compensation, a victim must request

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compensation through the commission and be alive at the time

that compensation payments are paid from the fund.

(3) A request for compensation must be made to the

commission no later than December 31, 2023.

(4) Payments for compensation shall be made after the

expiration of the five-year contribution period under section

10121(e) (relating to participating institutions).

(5) To receive a payment, a victim must sign a release

of all claims arising out of the incident for which the

victim receives compensation.

§ 10124. Barred claims.

(a) Change.--A participating institution shall not be

subject to a barred claim as a result of a statutory change

relating to child sexual abuse, including a civil time period

which may be created by a constitutional amendment or otherwise.

(b) Tolling.--A tolling of a statute of limitations or a

statute of repose based on a legal theory shall not apply to a

barred claim against a participating institution.

repose for a barred claim in effect on the effective date of

this section shall continue to apply to participating

institutions.

§ 10125. Immunity.

(a) Sovereign immunity.--An institution as defined in

paragraph (1)(ii) of the definition of "institution" in section

10102 (relating to definitions) is entitled to sovereign

immunity under 42 Pa.C.S. Ch. 85 Subchs. B (relating to actions

against Commonwealth parties) and C (relating to actions against

local parties).

(b) Participating institutions.--Eac h individual and

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participating institution providing evide nce, truthful to the

best knowledge of the testifier, to the commission shall be

immune from the civil claim of a party who may claim to be

harmed by the testimony.

and commission staff shall be immune from the civil claim of a

party who may claim to be harmed if the commission, members of

the commission and commission staff are acting in good faith and

within the mandate of the commission.

SUBCHAPTER D

MISCELLANEOUS PROVISIONS

Sec.

10131. Expiration.

§ 10131. Expiration.

This chapter shall expire on the date of the publication of

the notice under section 10113(d) (relating to functions).

Section 2. This act shall take effect immediately.

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