*1 23 of the time the additional is added remain the terms vehicle no an addi- language requiring 1738 contains policy. Section of an additional vehicle. upon purchase tional waiver Further, specifi- of the Section MVFRL Pa.C.S. 1738. reject must be provides coverage that an cally opportunity given “at application original coverage, the time of ” required.... rejection no other notice or shall view, my appeal (emphasis supplied). construction involving simple statutory remains one issue of MVFRL, is resort easily specifically resolved of those plain language 1738 and 1791. The two Sections Sections, nearly as two decades of Insurance Commis- well a conclusion that industry practice, compels sioner-approved no an insured adds an stacking required new waiver I additional to an existing policy. vehicle multi-vehicle would appeal depend upon not alter issue on and make the result language after-acquired provision. of an vehicle I respectfully dissent. join this dissenting
Justice and FITZGERALD EAKIN opinion.
PHILADELPHIA d/b/a and/or a/k/a and/or t/a Ballpark, Phillies, The Phillies d/b/a a/k/a and/or t/a and/or al., Subpartnership, Joseph or The et Fabriz Phillies d/b/a t/a zio, Scaruzzi, Ibbetson, Appellees. John Michael
Supreme Pennsylvania. Court of
Argued Oct. 2007.
Re-Submitted Jan. 2008.
Decided Feb. 2008. *4 Pokiniewski, Schwartz, Jr., Steven J. Alan Anapol, Schwartz, Weiss, Cohan, Smalley, Philadelphia, Feldman & for T.G., C.C.H. as Parent and Natural Guardian of a Minor and in her Right, Appellants. C.C.H. Own Bass, E. Tracy, Project,
Carol Amal Muñas Women’s Law Diane PA Moyer, Against Elizabeth Coalition Rape, Wom- ah, Project, appellant en’s Law et amici curiae. Rizzo, Darnall,
Robert Joseph Reger, Reger, Kavulich & LLP, Phillies, Inc., Philadelphia, appellee. for The Carlos, Bennett,
Pamela Ann LLP, Bricklin Saltzburg, & Scaruzzi, Philadelphia, for John appellee. Bender, Forbes, Bender, DiSanti,
Gary PC, Carl Paolino & Media, Fabrizzio, for Joseph appellee. Ibbetson,
Michael appellee pro se. CASTILLE, C.J., SAYLOR, EAKIN, BAER, BEFORE: McCAFFERY, TODD and JJ.
OPINION Justice BAER. T.G.,
Appellant girl, a minor was at time she was allegedly sexually by assaulted Appellees Joseph Fabrizzio, Scaruzzi, John and Michael Ibbetson. She subse- quently brought a seeking against civil action damages Phillies, Inc., individual defendants and the Philadelphia also party was named as a to this action.1 The individual defended, part, by defendants asserting that T.G. consented and, therefore, sexual activities them there no assault. There is no dispute given age, T.G.’s consent would not be as a if available defense the individual charged defendants were The criminally.2 question before us discussion, Fabrizzio, 1. For Joseph ease of we will refer to John Scaruzzi, or, and Michael Ibbetson their individual names collective- ly, Philadelphia as the “individual defendants.’’ The will Phillies referred to as “the Phillies.” below, explained fully Pennsylvania 2. As Crimes Code defines various crimes so as to make the defense of invalid where die *5 the the defendants is whether defense regarding individual in this civil action. The trial may consent be asserted court that, in the context of a Superior and the concluded Court trial, are raise a minor victim’s con- permitted defendants that, reasons, For the we conclude where the following sent. of the victim’s years age, is less than 18 evidence victim contact, in is proceedings, like criminal not a determining liability. in defendant’s civil an available defense Superior reverse the Order of the Court Accordingly, we respect court to the individual defen- affirming trial with dants, Superior and the matter remand with the trial a instructions to remand to court for new trial. Moreover, contend through special interroga- Phillies tories, it jury negligent, determined not and was therefore, it, jury is and the issue of consent irrelevant in its stand. and affirm that agree, verdict favor should We portion of Court’s decision. Superior case are August The relevant facts of this as follows. On at attending game was a Phillies baseball Veteran’s T.G. (hereinaf- family an adult friend Philadelphia Stadium ter, At some T.G. “guardian”). point during game, lost inside separated guardian from her became help stadium. T.G. that she then from the sought asserts security failed to personnel, alleges Phillies’ who T.G. assist finding guardian, her in her contravention to team’s People Policy.” See Appellants’ “Lost Brief at 6. It is however, eventually that she encountered the undisputed, defendants, old years individual were then 15 and 16 who instance, years age. victim is a For minor under Pa.C.S. 3121(c) provides person rape engages § if he that a commits of a child complainant years age, in intercourse with a who is less than 13 irrespective preclude Other statutes consent. also defense of 3123(b) (involuntary § see 18 deviate sexual inter- child); impose penalties course with and some harsher where a 3125(b) under 13 18 Pa.C.S. minor involved. See child); (inde- 3126(a)(7) (aggravated indecent assault of 18 Pa.C.S. assault). cent Furthermore, follows, the we note in the discussion that individual as delinquents charged juvenile prior were court in a defendants proceeding. adjudicated delinquent, were Two of the defendants guilty. found one was not According stand at the at concession stadium. employed *6 T.G., help telephone, these defendants offered to her locate a but instead led her to secluded area outside stadium sexually her clothes assault- they forcibly where removed and below, Id. As on explained parties disagree ed her. while occurred, all some they agree type intercourse that whether took place. sexual contact eventually guardian reunited her and the
T.G. was with reported police, explained incident to the after T.G. was responding raped by to the officers that she had been Fabrizzio, Searuzzi, defendants. and Ibbetson individual were court, in charged delinquents juvenile then with Searuzzi adjudicated ultimately being guilty and Ibbetson found Thereafter, delinquent, guilty.3 while Fabrizzio was found not C.C.H., and her filed a parent, (collectively, “Appellants”) T.G. in the complaint Philadelphia County Court of Common defendants, against Pleas the individual that claiming they battery against committed a her by forcibly removing T.G. alia, and, inter in clothing engaging vaginal and anal inter course her.4 in Appellants alleged complaint with their suffered trauma as mental physical anguish T.G. as well earlier, Finally, incident. as noted also named Appellants the Phillies as in alleged negligence failing a defendant for its which, People Policy” follow team’s “Lost according Appellants, required security personnel to escort T.G. to safe in ty locating guardian.5 and assist her her definitively specify delinquency 3. The record does not the acts of with charged. which the individual defendants were This information is unnecessary disposition question of the us. before battery 4. A is defined as a “harmful or offensive contact” with the Brown, 164, person Dalrymple of another. v. 549 Pa. 701 A.2d Here, (1997). suit, Appellants proceeding were in because a civil claim was that the individual defendants caused a harmful or offensive alia, by, forcibly removing clothing contact with T.G. inter T.G.'s contact, engaging including vaginal in sexual and anal intercourse. See R.R. at 69a-70a. above, grant we As indicated did not allocatur on the issue of whether 5. negligent following Policy.” People the Phillies were the team's "Lost only permitting The issue before us whether the trial court erred alleged T.G.’s to be admitted at trial. 25, 2005, to a trial before a proceeded the case February On statements, defendant During parties’ opening jury.6 not a argument made the T.G. was counsel Fabrizzio’s already knowledgeable about girl, but was “naive” then N.T., 2/25, 44. Fabrizzio’s counsel at matters. boys” at “flirting that T.G. had been with stated stadium, engaged sexually explicit that she conversa- the sexual con- prior defendants tions the individual Scaruzzi, opening her during for defendant tact. Id. Counsel statement, that her client not jury was emphasized T.G., but arguing had sexual contact with denying that he N.T., 2/25/2005, at 38- intercourse had occurred. that no voluntarily went counsel then stated T.G. 39. Scaruzzi’s stadium, the sexual contact outside the where boys with the *7 at later occurred. Id. 27-28. the day proceedings, outset of the second of the
At the attorneys, during colloquy parties’ trial court held a with suggested judge Appellants’ the trial discussed which N.T., 2/28/2005, Appellants at 26-29. had charge. for points the Pennsylvania an instruction based on Crimes requested Code, of a child under the seq., rape § 101 et for 3121(c), which, noted, as makes it a 18 Pa.C.S. age 13 irrespec in intercourse a minor under engage crime to with at 211a. As the minor’s consent. 'See will tive of R.R. discussed, did not the re ultimately provide the trial court instruction, N.T., 3/17/2005, 53-54, in at see quested addition, colloquy that T.G.’s general ruling during made and could be introduced to sexual contact was relevant negligence battery claims of at trial as a defense to T.G.’s N.T., 2/28/2005, Appel at 26-27. involving a sexual assault. objected, that consent not relevant alleging lants’ counsel was and, such, as sexual years age T.G. was under because of her regardless her is considered a crime contact with The trial then ex judge consent. Id. at 28-29. purported consent is not an although to counsel plained T.G.’s defendant, Ibbetson, appear during Michael did not 6. The individual eventually judgment $1.3 million was proceedings and a default for against entered him. context, in criminal the instant matter available defense and, such, as of T.G.’s consent proceeding evidence precluded.7 is not Id.
Following ruling the trial court’s on Appellants, ease-in-chief, their called the individual defendants to the them if on cross-examination. began questioning stand and During questioning, engaging the individual defendants denied T.G., in sexual but that sexual intercourse with admitted contact had occurred and asserted that had consented to T.G. Fabrizzio, such to counsel respect Appellants’ contact. With asked him in the sexual willing participant whether T.G. was conduct, responded Fabrizzio the affirmative. asked whether T.G. had mentioned Similarly, anything sexual in her conversations him in the prior engaging with contact, stated that been very “flirty” Scaruzzi T.G. had N.T., 2/28/2005, Finally, with him. at 18. the Phillies called a witness who testified that she observed T.G. approach individual defendants and offer to perform sexual favors them.
At the close of testimony, judge charged jury trial general on the of the tort of battery definitions and the crime but, above, of rape, prior ruling consistent with its did noted Code, not charge jury regarding the section of the Crimes 3121(c), 18 Pa.C.S. that a child providing under indeed, lacks the to consent capacity rape, or Code, accordance other sections of the any Crimes *8 N.T., 3/17/2005, Thus, battery. sexual See at the court 31-75. any did not the on provide jury guidance the relevance of in age alleged T.G.’s relation to the sexual contact. Subse- opinion Appellants' 7. One should note that the trial court's states that counsel introduced the issue of T.G.'s consent he called Fabrizzio and Scaruzzi to the stand as if on cross-examination in case-in- their However, that, recited, chief. the reeoi'd reveals both individual participating defendants in the trial raised the consent issue in their statements, opening witnesses, began calling which were delivered before T.G. pi'ior the time that to Fabrizzio and Scaruzzi were called circumstances, to the sland. Given these individual the defendants' that, substance, ai’gument "opened in T.G. the door” to the consent controversy permitted protest and should not now be to the issue’s case, injection into the is without merit. liability on the 18, 2005, jury found no the on March quently, defendants, that the individual finding all of the part battery against commit a not or otherwise rape did defendants following in not been T.G., negligent the Phillies had and that Policy.” People team’s “Lost the verdict, post- filed a Appellants its jury rendered After trial, trial court denied. seeking a new which trial motion filed a Court and Superior to appealed then Appellants appeal of on complained matters statement of timely concise claimed, 1925(b), Appellants to Pa.R.A.P. wherein pursuant alia, a new in them inter denying the trial court erred that counsel defense improperly permitted the court trial because activity. alleged sexual the issue T.G.’s to raise it in opinion trial court issued an In response, in that, proceed- criminal a civil proceeding, unlike in a opined minor is under 18 consent is at issue even where ing, Appellants’ that it court further stated The age. counsel, introduced the issue counsel, that had and not defense the stand Fabrizzio and he called Scaruzzi of consent when in voluntarily on T.G. had acted them whether questioned the court Accordingly, encounter. in the sexual participating in permitting it acted its discretion that within concluded manner. to be introduced issue of consent in an affirmed Superior of the three-judge panel A the court opinion, In its memorandum decision. unpublished claiming not defendants were noted that individual Instead, emphasized the court to intercourse. T.G. consented that no intercourse asserting that the defendants were to other sexual occurred, had consented and that T.G. had the individ- opined the court regards rape, contact. story of the their side explain were entitled ual defendants had, fact, The occurred. that no intercourse by alleging of consent to that there is an acknowledged court also Code, that it but stated in the Crimes provided sexual contact Finally, case. necessarily battery a civil apply did not claiming she concluded because T.G. was court incident, consensual from the anguish mental suffered
33 admissible, nature of the sexual contact was as it was relevant assessing pain suffering. her filed a for of Appellants subsequently petition allowance Court, appeal granted, with this which we limited following question: of consent is cases
Whether
defense
available
civil
stemming
age
from sexual contact with a minor under the
13
has
Legislature
precluded
where the
such defense
in criminal proceedings?
statute
Phillies, Inc.,
(2007)
v. Phila.
591 Pa.
C.C.H. curiam). (per Appellants’ position
We now turn to that consent should not be an available defense in proceedings stemming sexual contact minors 13 years age. Appellants under begin argument by their noting various statutes under the Crimes Code criminalize sexual contact with minors under of the irrespective regard, minor’s consent. Appel point child, lants out that consent is not a to rape defense of a 3121(c), § child, 18 Pa.C.S. aggravated indecent assault of a 3125(b), assault, 3126(a)(7), § § indecent 18 Pa.C.S. assault, aggravated pro- 8. 18 Pa.C.S. which defines indecent vides: in, (a) person engages penetration, ... slight, who however of the genitals complainant part person’s body or anus of a with a of the medical, any purpose good hygienic other than faith or law enforce- procedures aggravated ment commits indecent assault if: (7) complainant years is less than 13 ... (b) person AGGRAVATEDINDECENT ASSAULTOF A CHILD.—A aggravated person commits indecent assault of a child when the (a)(1), (2), (3), (4), (5) (6) complainant violates subsection or and the years age. than is less (c) GRADINGAND SENTENCES.— (1) (a) felony degree. An offense under subsection is a of the second (2) (b) felony degree. An offense under subsection is a of the first 3126(a) provides person guilty 18 Pa.C.S. that "[a] of indecent person complainant, if assault has indecent contact with the causes complainant person to have indecent contact with the or intention- fluid, ally complainant causes the to come into contact with seminal purpose arousing person urine or feces for the sexual desire in the or (7) complainant complainant and: ... is less than 13 3126(b) age.” provides graded Section that indecent assault is as a However, degree provides second misdemeanor. this subsection also *10 child, a 18 sexual intercourse with involuntary deviate and 3123(b). also note that some of these Appellants Pa.C.S. than the victim less penalties harsher impose statutes 3126(a)(7). 3125(b), See, §§ 18 age. e.g., years 13 that, defense of consent for by precluding claim Appellants contexts, by and variety imposing 13 in a minors under scenarios, has legislature implic- in some penalties harsher incompetent under 13 are persons itly recognized ar- Appellants More importantly, to sexual contact. dealing with that, stricter standards when by creating gue children, a intent to legislative these statutes reflect young class, exploitation. a from sexual under as protect persons that it be inconsistent Appellants assert would Accordingly, intent, public preclude contrary policy, this and the defense in in criminal cases but to allow defense of consent matters. civil recog- previously that this Court has
Appellants emphasize criminal, forth conduct is setting that statutes what nized set the hence, legal can be used to socially unacceptable, liability. both criminal and civil establishing parameters relied instance, upon note that this Court has Appellants For 21 years under prohibition against persons the criminal an adult social beverages defining alcoholic consuming to minors. furnishing of care in alcohol See duty host’s Sullivan, Pa. A.2d v. 572 Alumni Association (1990) of alcohol consumption by (explaining and, therefore, an under 21 violates the Criminal Code persons se). negligent per alcohol to minors is serving social host adult that, recognize by Appellants urge Consequently, to consent to years incompetent under 13 old deeming persons contact, criminalizing sexual contact with such sexual has de- legislature of their irrespective persons years age, under 13 indecent assault is in the case of minors degree felony if additional circumstances are graded a third certain established. 3123(b) person involuntary provides that a commits devi- 18 Pa.C.S. engages person in deviate intercourse with a child "when ate sexual complainant than 13 with a who is less intercourse age.” generally defining of conduct that applies fined standard criminal and contexts. liability both civil jurisdictions also on cases from other Appellants rely of consent in applied have a criminal bar defense civil example, Appellants For note that Minnesota proceedings. a criminal that consent is not defense to providing has statute charge statutory rape ages when the victim is between the than the perpetrator of 13 and is months older also determining victim.9 whether a victim’s consent was as a defense in precluded proceedings, Minnesota Appeals legisla Court of this statute as interpreted evincing *11 protect ages tive intent to a class of minors of certain from contact in general, irrespective Bjerke sexual consent. v. Johnson, The court (Minn.Ct.App.2007). N.W.2d then concluded that it be this intent to contrary would allow negate liability, the defense consent to be admitted to civil the same defense in the criminal precluded where would (Second) Id.; context. see also Restatement of Torts 892C(2) (1965) (“If § in conduct is made criminal order to a certain class of of their protect persons irrespective the consent of members of that to the conduct is not class action.”). suggest effective bar a tort that Appellants Bjerke represent Section 892C of Restatement view, correct and that their here. logic apply should In arguments, addition to these that it Appellants suggest defendants, make policy would better public preclude civil, whether criminal or from consent as a defense raising young the victim of sexual contact is a child. Appel- where note that or emo- physical lants children who have suffered tional trauma lifelong because of sexual contact often suffer that treatment consequences may require continuing counseling. Appellants argue legislative therefore intent to protect young exploitation minors sexual should arena, not be limited to the criminal but should also extend to person it 9. Minn.Stat. 609.342 makes a crime for a 48 months older ages than the victim to have intercourse with a minor between the of 13 16, regardless of consent. be made may that such victims in order proceedings civil whole. case this remand this request
Finally, Appellants view, because, in their trial all defendants against for a new to such an proceedings the' poisoned the issue T.G.’s In a fair trial.10 receiving them from prevented that it extent that, trial only judge not did the claim regard, Appellants admissible, in it erred also that consent was ruling err law, that, Pennsylvania under jury to instruct failing of consent. legally incapable years age ’child under 13 defen- the individual arguments, to Appellants’ contrast Pennsylvania proceedings, take the position dants universal, below which bright-line age not established a has note, They consent. giving incapable children are deemed 3122.1, statutory defines which example, if the assault, consent an invalid defense victim renders is four or more of 16 and the offender age is under the that, had the suggest than the The defendants older victim. age 13 as the intended to establish legislature to sexual con- capable consenting legally minor is deemed In the tact, to that effect. legislation it have enacted would the individual pronouncement, a clear legislative absence of in civil inquiry that consent is relevant defendants contend of 13 is the a minor under even where proceedings, *12 alleged victim. that argue also that those cases
The
defendants
individual
typically
consent in
cases
the defense of
civil
precluded
have
authority
a
of
occupying
position
adult perpetrators
involve
the
instance,
observe that
For
the defendants
and trust.
the
supervised
plain-
an adult
Bjerke
in
was
who
perpetrator
Similarly,
at
ranch.
727 N.W.2d
187.
Bjerke,
tiff at a horse
DeHart,
1220,
in Bohrer v.
943 P.2d
the defendants note that
Appeals
of
(Colo.Ct.App.1996),
Colorado Court
1225-27
below,
in
that the team
the Phillies contend
its brief
10. As mentioned
Appellants'
claim
party
because the
sole
not be a
to a new trial
should
negligent
following
team's "Lost
against
it was
in
it was that
that,
we
Policy”
respect
The Phillies note
because
Peoples
with
to T.G.
issue, any
proceedings should be
grant
further
did not
allocatur on this
solely
Appellants and the individual defendants.
between the
a minor had
declined to
the defense of consent where
allow
minister, noting
contact
her
the minister
with
trust
Id.
occupied
position
respect
victim.11
precluded
The defendants also claim that courts have not
where,
here,
of consent in
cases
the alleged
the defense
in
v.
perpetrator
They
is also a minor.
note that McNamee
A.J.W.,
(1999),
Ga.App.
519 S.E.2d
which
16-
15-year-old girl
involved sexual contact
and a
between
declined to
year-old boy,
Georgia
Appeals
pre-
15-year-old
clude evidence of the
victim’s consent to inter-
determining
16-year-old
liability.
course
defendant’s
conclusion,
In
this
the court
Prosser
reaching
adopted
&
(5th
1984),
Keeton on the
of Torts
at 115
ed.
Law
which
recognizes
acquire
capacity
that minors
to consent at
standard,
in their
stages
development. Applying
different
15-year-old
capable
the court concluded that
victim was
and, therefore,
consenting
permitted
the defendant was
McNamee,
introduce evidence of her consent as a defense.
that,
argue
In addition to these arguments, individual defendants posit they because were themselves minors occurred, Pennsylvania incident should afford them likewise them protection being falsely rape by allowing accused to introduce T.G.’s consent.12 also They suggest applying the criminal bar to consent in civil matters unnecessari- would Bohrer, however, statute, In the court relied on a Colo.Rev.Stat. 11. 18-3-405.3, expressly provides that consent not a defense to "position sexual assault oil a minor one in a The decision trust.” subsequently Bohrer vacated and remanded consideration of DeHart, 1997). (Colo. another remand, case. Bohrer v. 1997 Colo. Lexis On Appeals the Colorado Court reached the same conclusion as DeHart, prior opinion adopted analysis. its Bohrer v. 944 P.2d (Colo. 1997). Ct.App. below, 12. As noted in further detail the individual defendants continu- ously attempt through "rape" to characterize T.G.’s claim as one of fact, alleging sexually their briefs. T.G. sued that she had been *13 assaulted, prove rape and therefore she did not have to to be awarded damages. law, criminal civil and blur the distinction between ly concerns, and proof, goals. standards policy different have that in defendants claim regard, In this individual shape a financial incentive to plaintiff has proceedings, outcome, and that con- precluding to determine the evidence one-sided stories plaintiffs to tell without sent would allow im- cross-examination or subject any meaningful being defen- Finally, the defendant. the individual peachment that, if this determines that dants conclude even excluded, been a new trial of consent should have defense they never raised T.G.’s them is unwarranted because against intercourse they never had argued but instead with T.G.13’14 of our we note that the relief analysis,
At the outset examine Accordingly, is a trial. we must seek new Appellants court to determine whether a mistake the decision of trial Borah, trial. Harman ex rel. Harman v. Pa. was made at (2000). Where, here, as A.2d 1121-24 law, an error of this Court must alleged mistake involves Id. legal trial decision for error. If we scrutinize the court’s error, legal deny there no then decision to conclude However, Id. that a trial must stand. where we find new made, such analyze must then whether legal error was we regard, defendants claim because the 13. In this the individual theory premised upon allegations rape, Appellants’ entire at trial was intercourse, having they never the defendants denied and because However, complaint, actually in their relied on the defense of consent. rape, Appellants did not limit themselves to the claim of but instead which, battery, alleged as a harmful or that she was a victim of touching, (referring rape. can include See R.R. at 69a-70a offensive complaint defendants committed an assault the individual their they "forcibly clothing battery removed and [her] on T.G. alia, vaginally anally sexually by, repeatedly [her] assaulted inter Moreover, her.”). though individual defendants raping even T.G., they they rape conceded sexual contact with claimed that did not her, by contending defended she consented thereto. weigh-in regarding also the defense of consent its 14. The Phillies However, arguments, they largely as are we do not recount these brief. Further, arguments. duplicative the individual defendants’ ultimately prevail claim that the team should not be a Phillies on its remand, specific of its claims is unneces- party on further discussion sary.
39 affected the Pa. Dep’t error would have verdict. Gen. of Co, 236, 590, 898 Servs. v. U.S. Mineral Prods. 587 Pa. A.2d (2006). 604 mind, this standard in must determine
With we now the erred in the trial Superior affirming whether court’s ruling purported that evidence of a minor’s consent to sexual contact, in the criminal which would not have been admissible due to the age, context minor’s was admissible. Because the law, ruling trial court’s a our question scope involves plenary review is and our standard of is de novo. review Home Appeals, Alliance Carlisle v. Bd. Assessment 591 (2007). 206, Pa. 919 214 A.2d
Prior discussing parties’ regarding the claims con sent, however, argument we address Phillies’ that it should not be a to a trial on remand. In this party regard, new argue Appellants’ theory against Phillies entire them was negligent team was to abide its “Lost failing by People Policy,” and not it had a part any assault. The special interrogato Phillies note that there were jury asking ries submitted to the it it whether found negligent, jury Phillies which the in the negative.15 answered that, Accordingly, argue Phillies because it absolved was jury negligence, and because con purported T.G.’s sent to sexual contact was not relevant to determining wheth er the team negligent failing policy, was to follow its matter, team no longer party should be a to this only we granted allocatur on the issue of agree consent. We with the contentions, Phillies’ judgment and affirm the entered for the Phillies. Accordingly, the Phillies will not party Turnbull, subsequent proceedings. See Stokan v. 480 Pa. (1978) 389 A.2d (stating jury where a finds one other, defendant liable and exonerates the a defendant iswho subject absolved from negligence should not be to a second remand). trial on asked, jury you negligent?”
15. The "Do find the Phillies were The jury question negative by checking answered this in the “No” on the 1181a; slip. verdict See R.R. at see also N.T. at 4-5. 3/18/2005 As noted question turn to of consent.
We now above, prohib includes numerous provisions the Crimes Code crimes, a minors. these defining sexual contact with iting that, if the thread these'statutes is Com throughout common of 13 that a is under the proves monwealth victim conduct, liability criminal engaged prohibited in the defendant established, is not an available the victim’s consent 3121(c) child); Pa.C.S. (rape defense. See Pa.C.S. 3125(b) child), indecent assault of (aggravated *15 3123(b) child); a sexual intercourse with (involuntary § deviate 3126(a)(7) (indecent assault). liabili By imposing 18 Pa.C.S. threshold, age is below certain ty whenever victim has made it a se for defen per in essence crime legislature a certain age, to sexual contact with minors under dants have to putatively of whether the minor consented such irrespective In has the de doing, legislature precluded contact. so these circum proceedings fense of consent in criminal under stances. Superior emphasized,
As the trial court Court however, of consent as a defense to sexual exclusion 13 is under the Crimes provided contact with minors under which, estimation, Code, apply their does not civil examine is Consequently, question arena. we must wheth preclusion er the criminal of defense of consent should be where, here, under the plaintiff extended cases a civil by 13 is caused age seeking damages injuries of of the Upon foregoing arguments contact. consideration law, case conclude the victim is a relevant we where than of the years age, minor less 13 of victim’s evidence contact, proceedings, consent to sexual like criminal is not liability defense in for such determining an available contact. conclusion, reaching way background
In this we note by Co., 504 Pa. Congini our decision v. Portersville Valve (1983), A.2d 518 we articulated the duty where first to a minor by guest care owed social host where minor is injured by after alcoholic imbibing beverages provided Association, also A.2d at 1212. In host. See Alumni previously adopted had Pennsylvania rioted that Congini, we (Second) (1965), provides § 286 of Torts which Restatement by of a “reasonable man” that courts can define the standard enactments legislative of conduct from adopting standards 470 A.2d protect Congini, a class individuals.16 designed Restatement, then guidance at 517-18. from the we Taking Code, looked to 6308 of the Crimes Section purchas- prohibits persons under 470 A.2d at ing consuming beverages. Congini, or alcoholic reflecting This this statute as interpreted 517-18. 21 are persons incompe- determination that under legislative also deter- importantly, tent to handle alcohol. Id. More we intent legislative mined that reflected a provision effects of protect minors as a class from the deleterious beverages. light legislative alcoholic of this consuming adopted defining duty this standard as pronouncement, we care to minor held that adults guests, owed adults alcohol to minors are se.17 Id. at negligent per who furnish provides: of Torts ‘‘The 16. Section 286 the Restatement Second may adopt court as the standard of conduct of a reasonable man the requirements legislative purpose of a ... is found to enactment whose exclusively part or in (a) protect persons a class of which includes the one whose *16 invaded, interest is (b) and invaded, protect particular to the interest which is (c) protect against to of harm which has interest kind resulted, and (d) protect against particular that interest hazard from which the harm results.” adoption subsequent Our of Section 286 has been reaffirmed in deci See, Mallick, 132, 521, (1987) e.g., sions. Orner v. 515 A.2d 523 Pa. 527 (noting adoption our of Section 286 of the Restatement of Torts Sec ond). beyond negligence per 17. The law on is se so well established as See, 652, 589, e.g., Energy, cavil. v. Shamnoski PG 579 Pa. 858 A.2d (2004) (observing reflecting legislative judgment 601-02 that statutes negli engage specified that a in certain constitutes failure conduct se), gence, may duty finding negligence citing provide per of in care Co., Valley Contracting Engineering v. Beaver Power Co. National & 883 (3d 373, Cir.1989); Young Dept. Transp., F.2d v. Pa. 1210 Pa. 560 1276, (2000) (noting negligence per A.2d not found 744 1279 se is provide specific guidance duty where a statute does not on the of care Currie, 532, 356, defendant); by owed Jinks v. 324 Pa. 188 A. 358 (1936) (finding negligence per vehicle statute se based on a motor 42 that the implicitly recognized In so this Court doing,
518. may sometimes set forth under Crimes Code standards determining liability. in civil have relevance defined standards of con jurisdictions have likewise Other statutes, to criminal includ by referring duct in civil matters where, here, of a minor to sexual as consent ing situations in by Appellants, Bjerke, contact is at issue. As noted accepted of Minnesota view Appeals criminalizes conduct to a certain class legislature protect consent, legislative judg it reflects a persons regardless is, matter, deemed general ment that such conduct at 193. As society. Bjerke, 727 N.W.2d inappropriate above, in that con precluded the criminal statute case noted the minor under statutory rape as a defense to where sent Royal v. School age Similarly, of 16. Id. Christensen District, 62, 283, (2005), 124 P.3d 156 Wash.2d 286-87 of consent Washington barred evidence Supreme Court in a for the alleged rape used as defense civil case being The court concluded that the criminal 13-year-old girl. of a case, guilt regard in that established without statutes force in the applied equal the minor with civil victim’s Id.; rel. Roe v. Orangeburg County context. see also Doe ex (1999) (acknowl 556, 518 Dist No. 335 S.C. S.E.2d Sch. in a battery that a child’s consent to sexual is invalid edging reasons in the state’s policy recognized case for the same civil Tobiassen, laws); P.2d Or.App. criminal Wilson v. (1989) an (holding incapacity provid to consent cases). criminal also applies ed the state’s statute Bjerke the criminal statutes at issue in Similar to Christensen, Pennsylvania’s Crimes Code establishes likewise regard without victim’s where guilt alleged. contact minors under 13 See conduct, describing prior positively prohibiting specific case law on statutes). argue negligence per interpreting While one could se similar *17 negligence by analogy apply per law to this that we should of se case, we decline to do so. We deal here not with whether a defendant duty legislature, imposed a our but rather whether that breached public policy can as a of assert an otherwise relevant defendant matter plaintiffs defense to a claim. 3121(c), 3126(a)(7). 3125(b), 3123(b), §§ In light statutes, taking guidance these from the decisions of our sister states Congini, agree as well as our decision in we that the legislature, by criminalizing sexual contact with minors 13 irrespective protect young under intended to who, being sexually children as a class from due to exploited youth necessary their or lack the inexperience, judgment Moreover, from sexual protect aggressors. themselves we that preclusion believe of a minor’s consent as a defense to sexual contact also notion reflects broader societal is, matter, sexual contact under 13 as a general with children because, reprehensible regardless young of consent at such a age, these children legally incapable giving are deemed consent. it Accordingly, legisla- we find consistent our with ture’s intent to protect young exploita- children from sexual tion, force, reject equal both the criminal and civil contexts, the proposition that an has 11-year-old capacity to consent to sex.18 however,
The individual suggest, ju- defendants that those risdictions barring defense of consent the civil context typically involve adults or occupy position authority who trust, case, whereas the instant are alleged perpetrators 15 and 16 age. argument We do not find this however, persuasive, given our conclusion Crimes concurring dissenting opinion argues The that the defendants 18. opportunity should be afforded the to establish that T.G. consented to regard, opinion sexual contact. In this relies on the Restatement (Second) (1979), "(1) effectively of Torts 892A which states: One who consents conduct of another intended to invade his cannot interests resulting recover in an action of tort for the conduct or for harm (2) effective, (a) by To be capacity it. consent must be one who has the him, (b) by person empowered to consent or to consent for conduct, particular substantially Respectful- or to the same conduct.” ly, that, supports by recognizing position citation to the Restatement our defense, before consent can be asserted as an affirmative person purportedly consenting capacity must "halve] the to consent case, T.G., child, 11-year-old simply ...". In this as an did not Id. capacity have the to consent to sexual contact. This caveat contained similarly in the protect Restatement was intended to and other T.G. individuals, and, undermining analysis, situated far from our confirms incapable consenting our view a child below a certain sexual contact. *18 of under 13 as a class minors protect an intent to reflects
Code incon It general. contact in would from sexual individuals here, years a young this for purpose sistent with minor — of simply by virtue protection of such old—to be divested senior, had not defendants, her years four that who were fact McNamee, Moreover, majority.19 of age reached the an of example the defendants as upon by relied at S.E.2d in a civil permitted consent is a minor’s jurisdiction a where of jurisdiction’s adoption context, upon premised Torts, recognizes Keeton on of Prosser & Section stages at different to consent capacity minors acquire that individuals be true may While it development. in their rates, de expressly our has legislature mature at different for mi determinations case-by-case in such engage to clined bright-line age a instead to establish opting nors under as a matter of law incompetent children are deemed where contact. consent to sexual applying insist that nevertheless defendants
The individual of the defense preclusion such as principles, criminal law the distinction blur proceedings, to civil would of create a situation where and criminal law and civil between cross-examina- meaningful be insulated plaintiffs would however, contention, reject impeachment. tion or We always placed as a has society that our whole observing in the criminal liberty interest on a defendant’s value higher that are at- financial interests corresponding then the context note, instance, that criminal context. We issue in the civil rights, safeguards, a full panoply are afforded defendants burden higher protections including and other added — confrontation, counsel, right proof, right are un- review—that appellate more standards stringent incon- it would be Consequently, defendants. available to civil conclude that general these societal notions sistent with interest, defendants, can are a financial defending who civil years under 13 that a minor claim as defense in the generally, a vast difference there is 19. We also observe compared maturity year old when of a 15 or 16 physical and emotional 11-year-old. to an contact, consented to sexual such a defense purportedly case, not in a criminal a defendant’s even available where interest is at stake. liberty is not an light of our conclusion that consent from sexual proceedings arising
available defense age, a minor under 13 we hold that- the contact with court erred a matter of ruling trial law evidence *19 a relevant issue that could be alleged T.G.’s Moreover, apply introduced at trial. as the trial court did not legal ruling Appellants’ post-trial the correct standard in on trial, ruling motion find that requesting new we likewise court, in ruling be in error. also note that the trial that We alleged evidence of T.G.’s consent to sexual contact was admis sible, the introduction of this evidence permitted without providing any guidance jury further to the on the relevance age. jury T.G.’s As the was not made aware that persons are, law, 13 years under as a matter deemed incapable agree we the admission of the prejudiced Appellants deprived defense of consent and them Accordingly, of a fair trial. we reverse the Order of the the trial court Superior affirming respect with defendants, individual and remand the matter to that court instructions to remand to the trial court for a trial. with new because that the in the Phillies’ Finally, agree jury we verdict party favor should stand and the Phillies should not be a remand, on portion Superior we affirm that of the Court’s decision. SAYLOR,
Justice Justice TODD and Justice McCAFFERY join the opinion.
Chief Justice files a concurring dissenting CASTILLE opinion joins. which Justice EAK1N CASTILLE1, Chief concurring dissenting Justice opinion join
I Majority Opinion the extent that it affirms the Superior affirming judgment Court’s order for entered concurring dissenting opinion, 1. For much of I am indebted to Ralph Cappy former Chief Justice J. and former Justice James J. 46 Phillies, disagree, Inc. I Philadelphia respectfully
appellee however, holding that consent is never Majority’s with out of arising allegations in a action as defense civil available age. contact a minor under of sexual with First, in my my disagreement The twofold. basis view, Assembly to criminalize that led the General policies minor of the irrespective contact under setting. in this inapt consent are While minor’s concerns, and reflects societal justice system larger criminal conduct, see 18 wrongful and deter punish aims to Church, 30, 513 Pa. 522 A.2d v. 104 and Commonwealth (1987), of a system prospect private tort offers the the civil monetary compensation form of individuals remedy, v. Civil Trosky another to make them See injured by whole. (1995). Comm’n, Pa. 652 A.2d These Service on the prosecution differences between a criminal fundamental me to a tort action on the other would cause one hand and issue of consent in the from the bar on the importing refrain justice be better to the latter. I believe would former if compensa- in the case whom present appellees, served *20 sought, properly oppor- were afforded tory damages were minor, those sought damages to establish that the who tunity in them, to consent and did fact consent capacity from had the injured her. Restatement to the she claims See events (Second) (“One effectively of Torts 892A who consents cannot another intended to invade his interests conduct of harm in action of tort for the conduct or for an recover (a) effective, it. To be consent must be one resulting from a capacity by person empowered to consent or who has (b) conduct, him, or to particular for and to the conduct.”). the same substantially my my basis for dissent is belief that The second a a minor’s consent should be available as of whether question question in sexual offenses is a proceedings defense As this Legislature.2 which is best left public policy concurring dissenting proposed Fitzgerald, who each drafted a opinion prior departing from this Court. stemming Majority one Although the evaluates this case as 2. minor, appellant proceeded I at trial contact” with a note “sexual subject a upon has held: the law shall long [w]hat a power legislative question.” has is legislature over which (1890). St, 219, 257, In re Ruan 132 Pa. 19 A. Moreover: is fundamental public policy enunciation of matters of [t]he the courts ly legislature. of the While power within case, legislative pro in a in the absence of a may proper nouncement, against public policy, is determine what Genoe, 325, 320, 321, in Mamlin v. 340 Pa. at 17 A.2d stated (1941): 407, so only given policy at 409 ‘It is is health, morals or public safety, for or obviously against unanimity opinion regard that there welfare is virtual it, of the that a court constitute itself the voice may ... As declaring.’ in so This not such case community ex rel Fox stated this Court Commonwealth recently by v. Swing, ... 409 Pa. [241] at A.2d [24] at 27, ‘It is to add to by interpretation legisla not for us to or legislate fit not to include.’ legislature tion matters which saw Alliance, 192 A.2d Lurie v. Pa. Republican (some omitted). (1963) citations
Here, availability as to the Legislature spoken has while in the criminal of the consent defense to sexual offenses context, in the civil context. it has not addressed defense Furthermore, the fact that the courts reached a differ- lower in the instant Majority Opinion ent conclusion than does the upon matter is one that this is not an issue indication in regard “there is a to it.” Id. unanimity opinion virtual Thus, effectively be reluctant to supplement Court should did existing legislation provisions Assembly our General not include. reasons, part respectfully
For these I concur in dissent order in its part, Superior affirm the Court’s would entirety. *21 joins opinion.
Justice EAKIN theory brutally raped. Appellees coun- on the exclusive that she was place, evidence that no at all had taken and the tered with intercourse argued jury rape. Appellees never found that ihere was no alleged sought appellant intercourse for which she consented damages.