J-S47011-16
2016 PA Super 189
A.S., JR., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KATHLEEN G. KANE, ATTORNEY
GENERAL, COMM. OF PA, LAWRENCE M.
CHERBA, EXECUTIVE DEPUTY ATTY.
GENERAL, COMM. OF PA, LAURA A.
DITKA, CHIEF DEPUTY ATTY. GENERAL,
COMM. OF PA
APPEAL OF: KATHLEEN G. KANE,
LAWRENCE M. CHERBA, AND LAURA A.
DITKA
No. 2051 MDA 2015
Appeal from the Order Entered October 28, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-MD-0001010-2015
BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.
OPINION BY SHOGAN, J.: FILED AUGUST 25, 2016
Kathleen G. Kane, Attorney General of the Commonwealth of
Pennsylvania, Lawrence M. Cherba, Executive Deputy Attorney General of
the Commonwealth of Pennsylvania, and Laura A. Ditka, Chief Deputy
Attorney General of the Commonwealth of Pennsylvania (collectively “the
Office of Attorney General”), appeal from the order entered on October 28,
J-S47011-16
2015, that overruled the denial of the private criminal complaint filed by
A.S., Jr. (“Appellee”).1 After careful review, we reverse.
The relevant background of this case was set forth by the trial court as
follows:
On October 6, 201[4], [Appellee] filed a Private Criminal
Complaint by first class mail on Stacy Parks Miller, District
Attorney for Centre County, Pennsylvania, and Kathleen G.
Kane, Attorney General for the Commonwealth of Pennsylvania.
Although Ms. Parks Miller gave no formal notice of recusal, the
Office of Attorney General assumed jurisdiction over the matter.
[Appellee] asserts he is the victim of criminal offenses
committed by Gerald A. Sandusky. Specifically, [Appellee]
alleges Sandusky committed the following crimes: Involuntary
Deviate Sexual Intercourse (18 Pa.C.S.A. § 3123(a)), Sexual
Assault (18 Pa.C.S.A. § 3124.1), Indecent Assault (18 Pa.C.S.A.
§ 3126(a)(1)-(2)), and Corruption of Minors (18 Pa.C.S.A. §
6301(a)(1)(a)). After the denial of his Private Criminal Complaint
by the Office of Attorney General, [Appellee] sought review in
[the Centre County Court of Common Pleas] pursuant to
Pennsylvania Rule of Criminal Procedure 506.
* * *
Pursuant to Pennsylvania law, a private criminal complaint
must set forth a prima facie case of criminal conduct. In re
Private Complaint of Adams, 764 A.2d 577 (Pa. Super. 2000).
“The district attorney must investigate the allegations of a
properly drafted complaint to enable the exercise of his
discretion concerning whether to approve or disapprove the
complaint.” In re Wilson, 879 A.2d 199, 211 (Pa. Super. 2005).
When a complaint has been denied, the complainant may seek
review in the Court of Common Pleas. Pa.R.Crim.P. 506. Upon
review, the Court must first identify whether the prosecutor’s
denial was based upon a legal evaluation of the complaint, or
upon policy considerations. Wilson, 879 A.2d at 212. When the
____________________________________________
1
Due to the fact that a sexual offense was alleged, we identify Appellee in
the caption and in our discussion utilizing initials only.
-2-
J-S47011-16
decision to deny the complaint is a legal one, the trial court
conducts a de novo review, whereas when the decision is based
on policy considerations, the trial court accords deference to the
decision and should not interfere absent bad faith, fraud, or
unconstitutionality. Id.
After a review of [Appellee’s] Private Criminal Complaint,
and an investigation, which included a meeting with [Appellee],
the Office of Attorney General denied the Complaint on the basis
that the statute of limitations for bringing the alleged charges
had passed. This is a purely legal decision, and therefore, this
Court reviews the denial de novo. In its letter denying the
Private Criminal Complaint, the Office of Attorney General
explained that the public employee exception, 42 Pa.C.S.A. §
5552(c), would have to be applied twice, and “that type of
stacking appears to be prohibited by the statute as written.” This
Court does not agree.
Trial Court Opinion, 10/28/15, at 1-3. The trial court concluded that
Appellee was entitled to the benefit of the amended statute of limitations at
42 Pa.C.S. § 5552, found that his cause of action was not time barred, and
overruled the denial of Appellee’s private criminal complaint. Id. at 6-7.
Following the trial court’s order overruling the denial of the private
criminal complaint, the Office of Attorney General filed a timely appeal. On
appeal, the Office of Attorney General raises one issue:
I. IS THE PROSECUTION OF [Appellee’s] PRIVATE CRIMINAL
COMPLAINT AGAINST GERALD SANDUSKY BARRED AT THIS
JUNCTURE BY THE APPLICABLE STATUTE OF LIMITATIONS?
The Office of Attorney General’s Brief at 4.
We begin our analysis by reiterating that when the prosecuting
attorney disapproves a private criminal complaint on the basis of legal
conclusions, the trial court undertakes de novo review of the matter.
-3-
J-S47011-16
Wilson, 879 A.2d at 214. On appeal, this Court reviews the trial court’s
decision for an error of law. Id. “As with all questions of law, the appellate
standard of review is de novo and the appellate scope of review is plenary.”
Id.
Initially, we note that on November 13, 2015, after the order in the
case at bar was filed, the Commonwealth Court decided Sandusky v.
Pennsylvania State Employees’ Retirement Board, 127 A.3d 34 (Pa.
Cmwlth. 2015). In that case, the Commonwealth Court found that Sandusky
retired from Pennsylvania State University after the 1999 football season.
Id. at 37. Here, following the notice of appeal and the Office of Attorney
General’s filing of a Pa.R.A.P. 1925(b) statement, the trial court considered
the Sandusky decision in its Pa.R.A.P. 1925(a) opinion. The trial court
concluded that the statute of limitations was five years from the date of
Sandusky’s termination of employment in 1999. Thus, the trial court
reversed its earlier position and opined that the cause of action was time
barred. Pa.R.A.P. 1925(a) Opinion, 12/23/15, at 2.
The applicable statute of limitations in this case was amended several
times between the date the offenses allegedly occurred and the date
Appellee brought the private criminal complaint on October 6, 2014. The
impact of these amendments is addressed in 1 Pa.C.S. § 1975, as follows:
Effect of repeal on limitations
Whenever a limitation or period of time, prescribed in any
statute for acquiring a right or barring a remedy, or for any
-4-
J-S47011-16
other purpose, has begun to run before a statute repealing such
statute takes effect, and the same or any other limitation is
prescribed in any other statute passed by the same General
Assembly, the time which has already run shall be deemed part
of the time prescribed as such limitation in such statute passed
by the same General Assembly.
1 Pa.C.S. § 1975. In addition, this Court has explained that “when a new
period of limitations is enacted, and the prior period of limitations has not
yet expired, in the absence of language in the statute to the contrary, the
period of time accruing under the prior statute of limitations shall be applied
to calculation of the new period of limitations.” Commonwealth v.
Harvey, 542 A.2d 1027, 1029-1030 (Pa. Super. 1988). However, if the
prior statute of limitations expired before the new statute of limitations
became effective, “[c]ase law is clear that in those situations, the cause of
action has expired, and the new statute of limitations cannot serve to revive
it.” Id. at 1030.
In the case at bar, the criminal activity was alleged to have occurred in
June of 1988. At that time, the applicable statute of limitations under 42
Pa.C.S. § 5552 (Act 199 of 1984)2 required the prosecution to commence
within five years from the date of the offense. Accordingly, the mechanical
run date would have been June 30, 1993.
____________________________________________
2
Each amended statute appears at 42 Pa.C.S. § 5552. Thus, we refer to the
multiple versions by the Act number and year.
-5-
J-S47011-16
Prior to the mechanical run date of June 30, 1993, on February 19,
1991, the relevant statute of limitations was again amended. Section 5552
(Act 208 of 1990) was amended to provide that prosecution must be
commenced within five years from the date of the victim’s eighteenth
birthday. However, Act 208 of 1990 also provided a public-employee
exception, which stated that even if the relevant statute of limitations
expired, a prosecution may be commenced for: “Any offense committed by a
public officer or employee in the course of or in connection with his office or
employment at any time when the defendant is in public office or
employment or within five years thereafter, but in no case shall this
paragraph extend the period of limitation otherwise applicable by more than
eight years.” Act 208 of 1990.
At the time section 5552 was amended by Act 208 of 1990, the statute
of limitations under Act 199 of 1984 had not expired. Accordingly, Appellee
was entitled to the newer statute of limitations. Harvey, 542 A.2d at 1029-
1030. Thus, the statute of limitations would expire on December 26, 1994,
five years after Appellee’s eighteenth birthday. However, due to the public-
employee exception, that mechanical run date could be extended eight
years. Because Mr. Sandusky was still a public employee in 1994, the eight-
year extension applied and resulted in the statute of limitations expiring on
December 26, 2002.
-6-
J-S47011-16
On August 22, 2002, Act 86 of 2002 extended the statute of
limitations to the victim’s thirtieth birthday. Because the statute of
limitations under Act 208 of 1990 had still not expired as of the effective
date of Act 86 of 2002, the mechanical run date became December 26,
2001, Appellee’s thirtieth birthday. However, we must take into account the
public-employee exception, and therefore determine when Mr. Sandusky left
his employment at the university.
As mentioned above, on November 13, 2015, the Commonwealth
Court decided Sandusky. In that opinion, the Commonwealth Court
concluded that Mr. Sandusky retired in 1999. Id. at 40. It is, however,
unclear as to whether Mr. Sandusky’s employment terminated on June 29,
1999, the day he signed his retirement papers, or on December 29, 1999,
the day after the Alamo Bowl when Penn State’s football season concluded.
For purposes of our discussion, this determination is ultimately of no
moment. Even if we use the later of the two dates, December 29, 1999,
Appellee’s private criminal complaint was untimely. In applying the public-
employee exception, prosecution of Mr. Sandusky had to be commenced
within five years of his termination of public employment. This results in a
run date of, at the latest, December 29, 2004.
Effective January 29, 2007, Act 179 of 2006 amended section 5552.
Pursuant to this amendment, the statute of limitations was extended to a
victim’s fiftieth birthday. We conclude, however, that Appellee is not entitled
-7-
J-S47011-16
to the benefit of Act 179 of 2006 because, as of the effective date of Act 179
of 2006, January 29, 2007, the December 29, 2004 run date we determined
above had passed. Accordingly, the time in which Appellee could have
brought his claims had expired prior to the effective date of Act 179 of 2006.
For the foregoing reasons, we conclude that Appellee’s October 6,
2014 private criminal complaint was time barred as the statute of limitations
had expired. Accordingly, we reverse the trial court’s order that overruled
the Office of Attorney General’s denial of Appellee’s private criminal
complaint.
Order reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2016
-8-