Hutchison Ex Rel. Hutchison v. Luddy

51 742 A.2d 1051 Pennsylvania, Appellee, COMMONWEALTH

v. WHARTON, Appellant. Robert Supreme Pennsylvania. Court 5,

Nov. 1999. ORDER PER CURIAM: November, NOW,

AND 1999 day this 5th the order County Philadelphia hereby Court of Common Pleas Pa.R.A.P.1925(a) comply vacated for failure to and this matter is remanded to the trial court order for it to issue an adequately which addresses all of the relevant opinion issues. Williams, 207, 557 732 1167 See Commonwealth v. Pa. A.2d (1999). A.2d HUTCHISON, Jr., by HUTCHISON, Mary

Michael S. J. Guardian, Appellants Parent Natural

v. LUDDY, Church, Bishop Father Francis Therese’s Catholic Hogan Altoona-Johnstown, Appellees. James and Diocese of

Supreme Pennsylvania. 9,

Argued March 1998.

Decided 1999. Nov.

Reargument Denied Jan. Altoona, Serbin, Pittsburgh, Richard M. Cooper, L. Thomas Hutchision. Mary for Michael & Barre, Bednarz, Jr., Mundy, F. James A. Wilkes John TLA. for Amicus-Pa. Philadelphia, Eck, Long, Pittsburgh, A. Louis C. Carl St.Therese’s/Bishop Hogan/Dioces. Johnstown, Weaver, Luddy. for Father Francis J.

David CAPPY, FLAHERTY, C.J., ZAPPALA, and Before SAYLOR, CASTILLE, NIGRO, JJ. NEWMAN and THE JUDGMENT ANNOUNCING OPINION THE COURT OF NEWMAN, Justice. (Michael) Hutchison, from an appeals Jr. Order

Michael S. an of the Court of that reversed Order court) (trial County entering judgment Pleas of Blair Common Luddy (Luddy) Father Francis of Michael and favor (StTherese’s), Bishop Church Therese’s Catholic of Altoona- Hogan), and the Diocese Hogan (Bishop James (Diocese). part, vacate in part, We affirm Johnstown this Opinion. consistent with proceedings remand further AND HISTORY FACTUAL PROCEDURAL Michael, I.Q., has a low first met mildly who is retarded and priest religious when became later, year when Michael was ten Approximately one teacher. him. old, molesting years Luddy began sexually to eleven brothers out to eat after often took Michael and his Luddy classes, in his boys allowed the to watch television religion and Michael’s Rectory. at Therese’s He became bedroom St. boys ask Michael’s mother to take the godfather, and would with Michael and his Luddy out to dinner. also traveled brothers, candy. buy boys toys often and and would 1982, Luddy from 1976 to molested Mi- During period, fifty seventy-five Luddy’s times in approximately chael old, By years bedroom. the time Michael was fifteen rectory Luddy turning he became accustomed advice and matters, personal religious on and as well as for “nice counsel out, which things,” trips eating usually such as and molestation. intertwined with sexual occurred in 1982 Two other incidents molestation and old, 1984, years Michael was fifteen and seventeen when incidents, living At the time of both Michael was respectively. Akron, Ohio, away ran from home to family with his and home, Luddy problems experiencing talk to about he was at working Windber, Church in Luddy Mary’s and reassigned he had been 1980. Michael Pennsylvania, where requested they testified that he specifically engage Nevertheless, occasions, any activity. sexual on both Michael in a motel room in Altoona at the stayed suggestion Luddy,1 Michael, him, Luddy and visited talked with and molested him. action, Only these last two incidents form the basis of this civil because the earlier incidents are all barred the statute of limitations. Complaint against Michael filed a Luddy, St.

Therese’s, Diocese, Bishop Hogan alleging and the causes for, alia, action inter intentional infliction battery, of emotion- distress, trial, al negligent supervision. and retention and At incidents, Michael testified about the 1982 and introduced testimony boys Luddy other whom had abused, (Mark). including Michael’s brother Mark Hutchison them, Luddy These witnesses testified that using abused them, pattern the same of befriending treating gifts them to trips, molesting them. boy One testified about two Rico, during to Puerto which trips Luddy repeatedly molested him. cross-examination,

On Luddy admitted he had molested children, including molesting numerous Mark hundreds Throughout opinion, incorrectly its the dissent asserts that Michael room, voluntarily invited to the motel when in fact Michael testified that in both 1982 and it was who told Michael to rent a room at the Townhouse Motel and that he would meet Michael there as soon as he could. See R.R. at 978-987. four He years. of more than period throughout times 1967, in approximately the first child testified that he molested ordination, to molest and that he continued years two after followed, in that years Diocese after child within the child worked as an where he lived and usually in the rectories pastor. a Diocesan supervised by He was pastor. assistant from the many trips boys took that he Luddy admitted he would molest them. during which parish, that the Diocese had actual evidence presented Michael also 1969, Luddy when since 1967 Luddy’s pedophilia notice of time, a fourteen At that to St. Mark’s Church. assigned was incidents of molestation boy reported old two year or fifteen Mulvehill, priest at St. Luddy’s supervising Louis Father that, and Mark testified Michael’s mother Mark’s. Mark to two priests sexual abuse of reported Luddy’s they Furthermore, Kline, who was Monsignor Roy the Diocese. Therese’s, that he testified priest St. Luddy’s supervising Michael, Mark, into his boys and other Luddy saw take often bedroom, that that he should have known and rectory behavior. engaged pedophilic was jury returned testimony, weeks of hearing After eleven that jury specifically 1994. The found April its verdict on was Therese’s, Hogan and the Diocese knew Bishop St. children, in their retention they negligent molesting practice and Luddy, they pattern supervision among priests, allegations pedophilic behavior ignoring factor in bringing was a substantial negligence and that their liability thirty-six per- to Michael. The attributed harm Therese’s, fifty-three Luddy, percent to cent to eleven St. awarded Mi- Hogan and the Diocese and percent Bishop $519,000.00 damages. The compensatory chael a total that the conduct of all the defendants jury also found damages Michael outrageous, punitive and therefore awarded- $1,050,000.00 against Luddy dollars (fifty thousand totaling Therese’s, Bishop Hogan one million dollars St. Diocese). and the Therese’s, filed Post-trial Hogan and the Diocese denied,

Motions, to the appealed trial court and then which the Superior reported Opinion, Court.2 verdicts, jury’s holding that Michael reversed had failed to (Second) liability pursuant establish to Restatement of Torts (Restatement 317). section, § “Duty Section This entitled Servant,” provides of Master to Control Conduct as follows: A master is under a to exercise reasonable care so to control his servant while of acting scope outside the employment as to from prevent intentionally harming from conducting others or so himself as to create an unrea- them, bodily sonable risk of harm to if (a) the servant

(i) upon in premises possession is the of the master or upon which the servant is privileged only enter as his servant, or

(ii) master, using a chattel of the and (b) the master

(i) knows or has reason to know that he has the ability servant, to control his and (ii) knows or should know of the necessity opportu- and nity for exercising such control.

A majority of the Superior panel Court held that room, Altoona motel incidents, site the 1982 and 1984 did not constitute a premises the possession of St. Therese’s, Diocese, Bishop Hogan and the nor one that Luddy servant, was privileged only enter as their they there- fore held that Michael could not establish liability pursuant to Restatement Section 317. The majority did not address any other Judge dissented, issues. Ford Elliott concluding that Luddy was privileged to enter the motel room only priest, as a Therese’s, and that Michael proven that St. Bishop Hogan and the Luddy’s pedophilic Diocese knew of behavior and knew or should have known of necessity for controlling such behavior. Accordingly, Judge Ford Elliott would have Court, Therese’s, appeal In Superior Bishop their to the Hogan St. issues, any and the Diocese e.g., did not raise constitutional free religion exercise of religion. Accordingly, any establishment such issues are waived. compensatory liability as to verdicts jury’s affirmed punitive imposition reversed would have damages. She was insuf- that there however, she believed because damages, or wanton behavior. of malicious evidence ficient

DISCUSSION on the judgment entry trial court’s reversing In judg entered a essentially verdict, the Superior jury’s Court’s Therefore, reviewing ment n.o.v. favorable in the most decision, light the evidence we must view winner, him the benefit giving as the verdict to Michael from the evidence arising inference every reasonable See, e.g., in his favor. evidence conflict resolving any (1992). Raeuchle, 529 Pa. 604 A.2d Moure v. of action numerous causes pleads Michael Complaint, In his Therese’s, the Diocese. Bishop Hogan and Luddy, St. alleges Michael Complaint, Five of Count or should have Therese’s, and the Diocese knew Hogan engage pedophilic predisposed known to Michael and and, therefore, they behavior, owed in a not be Luddy that would to ensure parishioners other children. him to have contact with permit that would position Therese’s, and Bishop Hogan that St. alleges further Michael (a) in by: putting duty their the Diocese breached (b) children; have contact with in he would position which (c) to secure failing in position; that Luddy to remain allowing (d) to failing supervise and Luddy; treatment in engaging pedophilic him from prevent so as to adequately alleges that Complaint, Michael In Count Six of behavior. pedophilic practice ignoring longstanding had a the Diocese investigate to intentionally failing e.g., by by priests, behavior action abuse; disciplinary refraining taking from reports children; such allowing known to have abused against priests in activ- supervision, without participate, continue to priests to children; reports from concealing parents and involving ities terms, Five Thus, Counts general Luddy’s misconduct. a cause of action St. set forth Complaint and Six reten- Therese’s, negligent and the Diocese Bishop Hogan Luddy. supervision tion and distinguish Court did not between

Although St. Diocese, Bishop Hogan we Therese’s and and the find an respect between these important parties. distinction With Therese’s, trial court instructed the St. follows: if, if, can but

They only you Therese’s] be found liable [St. have actual knowledge, conclude first that Therese’s did knew, Buddy engaged Father they pedophilic that ’83 relations minor males before the and ’84 incidents. knew, Second, they have to you they would conclude incidents, you’d knew have to conclude before these that as a result of actual knowledge their failure to warn their in bringing was a factor harm to Michael Hutchi- substantial son, Jr. words, they they other knew had a warn. And

if you they didn’t warn a result of a find that and as failure on part they they their to warn when because should’ve actual that knowledge Michael Hutchison —this was a sub- harm, causing stantial factor that would be the only on theory which St. Therese’s as an church individual could now, be And if you slip found liable. look at verdict ... now, if you Question look at you’ll we’ll read it see exactly, hope, that’s what’s phrased ques- these tions.

R.R. at 145-46. court explain The went on to the difference Therese’s, hand, on between St. the one Hogan Diocese, and the on the other: case,

I permitted you in this having you told have separately, you’ll consider these now notice that I put have in the question Bishop Hogan and the Diocese of Altoona- together. legal Johnstown That is true because the theories combine them. You should of them separate- consider each But, within ly question. if the Okay? answer either Bishop Hogan yes, may or the Diocese you yes just write if I as it was as to both. them yes Okay? put together But because it slip makes verdict shorter and the law permits me to do that.

Now I you may why wonder St. Therese’s sepa- treated rately put and these two I them together why together. — that. you’ll 5 I think understand Question you if read And Defendants, now, that find, Question 5 reading I’m ‘Do you Altoona-Johnstown, Diocese of Hogan and/or Defendant, supervision in the retention negligent the Diocese of within Luddy, priest as a Father Francis that for a Well, you if think about Altoona-Johnstown?’ in and in in second, question, the acts at the time of supervision role in the any longer Therese’s no St. by the Dio- he was retained or whether Father longer no involved He was cese, gone. He was right? therefore, have had they may that only duty, The them. one that may have had the they them is after he leaves they may have 3 and 4.3 That Questions to you outlined did, have had they may if known, you, they up that’s result might failure to do that and their to warn ability super- don’t have they But harm to Michael. which, you as parish their after he leaves anymore vise incidents, incidents either of these know, these is well before you see the maybe helps that And enough? occur. Fair two cases. distinction between supervi- have a the Diocese could Hogan and Only Bishop to consider the issues right or a real responsibility sory from his transfer after Luddy’s Father retention of the Diocese of part is while St. Therese’s Therese’s. So know, knowl- and their you as certainly, Altoona-Johnstown respect part in that considered any, may if be edge, individual possible bear no knowledge, they the Diocese’s beyond church as an individual okay, responsibility, Question 3 and 4. Question you I’ve outlined to which at 148-50. R.R. of action asserted between the causes

The distinction because of the significant the various defendants Defendant, read, you "Do find Question on the verdict form Defendant, Church, Father Francis knew that Catholic Saint Therese's Ques- with minor males?” engaged pedophilic relations Luddy, was Defendant, read, any St. Therese’s you failure “Do find that tion 4 Church, knowledge was a on their actual to warn based Catholic Plaintiff, Michael S. Hutch- bringing about harm to factor in substantial ison, Jr.?” timing of the incidents of on abuse which this action is based. found, doubt,

The and we have no that St. Therese’s failure to warn awas substantial factor in bringing harm to Unfortunately, Michael. we are constrained to find only harm which St. Therese’s is responsible is the abuse that took place assigned while was to St. Therese’s and there, parishioner Michael was a and liability for all such incidents abuse is by barred statute limitations. Thus, we have no choice but to affirm the Order of the Superior Court insofar itas absolves St. Therese’s of liability. claim

The of negligent supervision and retention asserted against Bishop Hogan Diocese, however, and the survived the statute of limitations because Luddy was still a servant of the at Diocese the time of the last two incidents of abuse. We find that Superior Court erred its analysis of this cause of action. Bureau,

In Dempsey Inc., v. 562, Walso 431 Pa. 246 A.2d (1968), a security guard employed by the defendant as- saulted an employee at a bus terminal where the security guard was assigned to work. This Court considered the question of whether the defendant/employer could be held liable “by because reason of security guard’s] [the conduct on various occasions prior to terminal], [the incident at the bus knew, defendant/employer] [the or by the exercise of reason- care, able should have known security guard’s] [the danger- propensity ous for violence and should not have continued him employ----” its Dempsey, 564, 431 Pa. at 246 A.2d at 419. Applying Restatement Section the Court held that the employer could be held if plaintiff liable prove could “that knew, employer or in the care, exercise of ordinary should have known of the necessity for exercising control of [the security guard],” but the Court concluded that “there no [was] evidence of record to show either knowledge or reason for knowledge on the part employer] [the security [the Id., guard’s] 570-72, conduct.” 246 A.2d at 422-23. The Court applied the rule of Dempsey Coath v. Jones, 277 Pa.Super. (1980), 419 A.2d 1249 with a differ- Coath, ent result. a former employee of the defendant entry to her home raped plaintiff, having gained that he there on the defendant’s business. representing of the perpetra- that the defendant knew plaintiff alleged The women, tor’s violence propensity hiring retaining perpetra- negligent defendant was failing and in its customers not allow tor warn into their homes. perpetrator objec- the defendant’s preliminary

The trial court sustained demurrer, in Superior tions nature of a but the decision, holding that follows: reversed if or have may negligent be he knew should employer [A]n a propensity known violence employee create a situation where the vio such employment might harm a v. Walso Bu person. Dempsey lence would third (1968) reau, Inc., 562, Pa. 246 A.2d 418 indicates that an 431 be for the failure to exercise rea may negligent employer propensity in an determining employee’s sonable care omitted]. violence. [Citations Coath, 482, Thus, the 419 A.2d at 1250. Pa.Super. 277 at that, be held “the defendant could found Superior Court to have the inclina- perpetrator] if was known negligent [the or if the defendant should have known tion assault women 483, Id., at 1250. The court further held that.” at A.2d that, “if by perpe- [the it were foreseeable defendant had, attack customer because he on a ... could a trator] occasion, the employ- been her home on previous admitted business, special relationship then would exist a er’s there duty the customer and a on the between defendant and Id., warning a reasonable to the customer.” employer give that, at 419 A.2d at 1252. The Court concluded prelimi- defendant’s improperly “the court sustained the [trial] objection. plaintiff nary pleadings Under the status support liability.” has facts which could defendant’s alleged A.2d at Id. in in have reached the same conclusion

Courts other states Council, For analogous example, Spread cases. Golden (Tex.1996), Akins, plaintiff, Inc. v. 926 S.W.2d 287 who scoutmaster, brought an action sexually was molested alia, against, inter Spread Golden Council of Boy (GSC), Scouts of America alleging that GSC had negligently recommended supervised scoutmaster. concluding plaintiff that the GSC, stated valid cause of action against Supreme Court of Texas held as follows: The injury plaintiff] was [the foreseeable to GSC.... summary judgment [T]he evidence shows that GSC knew of complaints that Estes “messing [the with” scoutmaster] some boy scouts and they was concerned that might be serious---- hold that GSC duty [W]e owed this case. clearly GSC duty owed a to the church that asked GSC to introduce it to a potential scoutmaster. We hold that this duty also extends to the parents children and involved boy [the scout who troop] relied on GSC and those involved in selecting the to provide [scoutmaster] a scoutmaster who was fit to serve.... GSC’s expressed best comment (Second) e to Section B302 of the Restatement Torts, which recognizes that may there be liability “[w]here the actor has brought into contact or association with the person other a whom the actor knows should know to be peculiarly likely misconduct, to commit intentional under circumstances which peculiar afford a or opportunity temp- tation for such misconduct.” Cases from jurisdictions other support this conclusion. [Citations Accordingly, omitted]. we hold that if GSC knew or should have known that [the likely scoutmaster] molest boys, duty it had a not to recommend as a scoutmaster. Council, Spread

Golden 926 S.W.2d 290-92. Similarly, Eno, v. Marquay 139 N.H. 662 A.2d 272 (1995), Supreme Court of New Hampshire held that a school district that knew its employees were abusing children could be held liable for negligent hiring and retention:

Liability exists not occurs, because of when injury but because “the actor has brought into contact or association with the a person other whom the actor knows or should know to be peculiarly likely to commit intentional miscon- duct.” Thus, [Citation employers omitted]. have been held liable for criminal conduct by off-duty employees or former 64 pro- consistent with a where such conduct was

employees known, of which the knew or should have employer pensity employee and the plaintiff the association between the by employee’s job. [Citations omitted]. was occasioned case, we present to the legal principles these Applying unit that a district or school administrative find school (school) it that duty employees has hire or retain for abus- sexually or know have a propensity knows should can that plaintiff students. establish ing Where have of such a reasonably knew or should known school the fore- generally will be liable for propensity, the school by employee. of students Liabili- seeable sexual abuse hiring on is not limited negligent based retention ty A day. may be during abuse that occurs school school employee for a student a school outside liable abuse of hours there is causal connection between school where Also, a the fact of school injury employment. particular injuries it knew or held for suffered after can be liable propensity. have of the employee’s should known Oubre, L.P. 547 662 at 280-81. also v. A.2d See Marquay, (boy scout council that knew (La.App.1989) So.2d be liable for could held scoutmaster’s scoutmaster’s conduct duty reasonable boy sexual abuse of scouts because “[t]he (discover) care, investigate whether characterized warn, encompasses or to the risk of (protect) to supervise Wilson, encountered.”); Funkhouser v. plaintiffs harm which (1998) (church Wash.App. P.2d 501 that knew could be held liable bible teacher’s bible teacher’s conduct students, abuse took regardless abuse of of whether the sexual church place premises). on compel of the instant case

The facts and circumstances supra. result as Coath and the other cases cited the same knew Here, Bishop and the Diocese for certain Hogan had a behavior and propensity pedophilic They of such specific aware of several instances conduct. in which have position him a he would placing knew Luddy ample opportunity contact with would afford children abuse, would result likely to commit further acts which extreme harm to the children supervision. under his Knowing this, all of Bishop Hogan and the Diocese had a to take appropriate precautions prevent Luddy from molesting any children, e.g., by more him assigning position to a in which any children, would not have contact with by ensuring that he sought disorder, for treatment or by terminating his Coath, employment altogether. 485, See 277 Pa.Super. at (4th Prosser, Torts, )) (“It A.2d at 1252 (quoting § 56 ed. 19— recognized is also if negligence defendant’s own has responsible situation, been for the plaintiffs a relation has arisen which imposes duty to make a reasonable effort to harm.”). give any assistance and avoid further Diocese, Hogan however, and the did not attempt to prevent harm, the foreseeable and instead undertook a course of conduct that increased the risk that Luddy would abuse Michael and other children. Instead him keeping away from children altogether, they disregarded Luddy’s miscon- duct and him allowed to have unsupervised contact with children. Instead of responding to Luddy’s pedophilic behav- ior, they ignored concealed and it. Bishop Hogan and the Diocese Luddy’s knew history and were in position prevent it, repeating from yet years they willfully allowed him to go on molesting children with impunity. Their inaction face such a only menace is not negligent, it is reckless Hence, and abhorrent. Bishop Hogan and the Dio- cese are as responsible as Luddy for the harm done to Michael, or, found, jury as the even more liable than the molester himself.4 Court,

The Superior though, did consider Coath or other Instead, case law. notwithstanding that “the common law in this Commonwealth prior to promulgation of [Restate- Section gave ment] recognition to the principles later 317,” embodied Section Dempsey, 431 Pa. at 246 A.2d Court analyzed Michael’s claim negli- gent supervision and retention exclusively pursuant to Re- statement Section 317. Court, his brief to this Michael above, 4. As noted liability sixty-four attributed percent to the Diocesan thirty-six percent Defendants Luddy. 66 in only not

extensively that the Court erred argues Superior 317, but that the Restatement Section also application its of for to consider his claim failing Court erred Superior pursuant legal and retention other negligent supervision authorities, Pennsylvania the of and other including caselaw Brief, at 27-32. dissent The jurisdictions. Appellant’s See “ ‘case of this Court explicitly that the law’ has further claims determining whether exists Section for adopted 317 1065, at n.l. This state- Op., as these.” circumstances such Pennsyl- has never been a disingenuous. is also There ment of closely circumstances that resemble those vania case with case the case, .any has Pennsylvania the nor addressed present of location Restatement requirement of the privilege element 317, In- primary is the focus dissent. Section which unam- deed, developed caselaw as well Pennsylvania suggests, unlikely as it is Court would biguous the dissent Appeal. Petition for Allowance of granted have Michael’s Moreover, erred majority respect Court Superior the requirement of Re- of the location privilege to the element (“the 317(a)(i) is ... upon premises servant statement Section only is to enter upon privileged [the ... which the servant servant.”) fact, majority Court did Superior the master’s] at all until Ford privilege Judge not address the element majority it in her dissent. The then added Elliott discussed following opinion: footnote to its language we not considered The dissent have states (Second) following text of Restatement emphasized 317(a)(i)____ § that although Luddy Our is response Torts have enter a room the Townhouse may privileged been providing pastoral guid- for of care and purpose Motel care person seeking guidance, ance to troubled such as a privileged to enter motel room certainly he Therese’s, Hogan and Diocese] servant [St. or other engaging for sexual misconduct purpose behavior. improper such 420, 424 n. A.2d Luddy,

Hutchison v. 683 Pa.Super. (1996). n. 1256 clearly This approach erroneous. What did he was in intended do once the motel room is irrelevant. Obviously, no one privileged is ever to enter a room purpose sexually abusing The someone. issue is not what room, to do he intended once entered the but how he gained i.e., access the room the first place, because position as a priest or some reason. majority other The attempted never to answer this question.

Considering light the evidence in the most favorable to Michael, we hold that the jury could that properly have found Luddy privileged to enter the room only priest. motel as a that, Michael testified at trial in 1982 and sought he priest counsel as Luddy’s advisor,5 and spiritual he specifically Luddy asked not to engage activity, sexual and that he never Luddy asked money:

Q. Now after you say you came back you [Luddy] called Mary’s?

and was at St.

A. Yes sir.

Q. have, Did you you get able to touch him? with A. Yes sir I was.

Q. you And did with talk him?

A. Yes sir.

Q. you What did to him? say A. I him told that I was having problems a lot at home I

and that like living didn’t in Ohio. I didn’t have all, hardly any at just friends and I was having prob- lems with I my father home didn’t and want to live Ohio.

Q. Luddy Did Father you listen to as you told him these

things over phone? 5. The dissent makes sought Luddy’s much fact that Michael concerning problems personal counsel of a nature rather than reli- gious spiritual Op., precise or See nature. at 1067. The nature of however, problems, Michael’s analysis is not to relevant Restate- because, Michael, many people ment Section like priests turn to or clergy guidance other counseling respect personal with issues they friends, are unwilling unable or family, discuss wilh others. Yes sir he did.

A. say you? Luddy Father Q. What did Motel rent go over to Townhouse He told me A. possible. as as be there soon room and that he would subject of sex come you, let ask did the Alright now me Q. conversation? phone up sir A. Yes it did. came or what was said? up us how it you tell

Q. Can that he wouldn’t do Luddy promise me I had Father A. wise, he didn’t me. promise me sexual but nothing to something else. on to just He went him to up asking this conversation Why you bring Q. did anything you? to do promise I sir. again to have sex with I didn’t want A. Because him. to talk to just wanted Luddy? talk with Father want to Q. Why you did still meant a whole Luddy at that time Father A. Because Father lot. I still cared loved lot to me. priest? your look Father you upon Did still Q. A. Yes sir did. your godfather? look him as you upon Did still

Q. Yes sir I did. A. two dollars sir before Luddy gave Father me hundred

A. he left. him two hundred dollars? you Did ask for

Q. no at all. money ask him for A. No sir I didn’t gave you money before he any discussion Q. Was there about, something? you wanted at all about that. no discussion A. No sir there was money? he say why giving you Did he was Q. out help A. To me sir. you because Luddy to see Father you go Did there

Q. money? wanted

A. No sir I didn’t. Q. Alright, how much you pay did for the room? A. I believe it thirty-eight dollars sir.

Q. Alright you’re so now just about busted? Yes sir.

A. Q. point spent Now at this you your money, pretty much it,of

all on food and motel this room correct? A. Yes sir. And at

Q. point you absolutely time no idea did that Father

you goodness out of the and love in his was going give heart you two hundred dollars? I A. No sir didn’t.

Q. you certainly Because ask him for it you? didn’t did No I not. A. sir did

Q. He purely volunteered it. He always

A. used to do nice things for me sir. Q. Alright, you but had no idea that he was going give any money that

you day you? did No A. sir didn’t.

Q. And no you had intentions of him I asking take it? A. No sir I not. did

R.R. at 978-1034. Michael further testified that at all times priest considered be his godfather always addressed him as “Father Id. Luddy.” jury The also Hogan’s testimony, stated, heard which he “I don’t you care If you’re priest, where are. you’re priest twenty- ” four a day, every hours day year.... Bishop Hogan 9/28/88,at Deposition, evidence, on this

Based reasonably could have found that Luddy was privileged enter the motel room only i.e., priest, as Michael’s only as a servant the Diocese. that, that, Even the dissent admits may be “[i]t well true it status, originally Luddy’s priestly never would met young Hutchison, have Michael the repeated and inci- dents of sexual abuse which Hutchison endured would never Thus, have come to pass.” Op., at 1068. the reasonably a priest, it status as Luddy’s have that was concluded could in that and 1982 and young was both when Michael that afforded relationship the and perpetuated created that, as Consequently, we conclude to the motel room. access Diocese, the Court erred Superior and the Bishop Hogan Section element Restatement privilege that the holding swpra, Furthermore, 317(a)(i) as noted not satisfied. ability to had the Hogan clearly and the Diocese Bishop into or terminat- by forcing him treatment Luddy, e.g., control knowledge of they specific and ing employment, behavior, they knew the and therefore pedophilic Luddy’s Thus, require- control of necessity exercising Luddy. 317(b)(i) (ii) met, also and of Restatement Section ments jury’s vacated the Court should have Superior so the and based on Hogan the Diocese against Bishop verdicts Section Restatement

CONCLUSION liable, cannot be held that Therese’s conclude St. We Superior Court insofar as we affirm the Order of therefore find, We in favor of Therese’s. howev- judgment it enters er, Bishop Hogan jury’s verdicts Therefore, are we vacate legally Diocese sustainable. judgment insofar as it enters Superior Court Order Diocese, we Hogan and the remand favor of of issues raised consideration case to appeal. in the direct but not decided defendants’ concurring opinion. Justice CAPPY files opinion Justice concurring which Justice SAYLOR files joins. ZAPPALA result. concurs

Justice NIGRO dissenting opinion. files Justice CASTILLE CAPPY, Justice, concurring. I majority. write

I in the result reached concur vacating separately why believe to elaborate

71 Court, of in Superior part, order the is to appropriate and myself part disassociate from the majority opinion of Superior criticizes the Court for focusing on Restatement (Second) § of Torts 317 as the sole basis for recovery. entered, essence, in judgment

The a in n.o.v. Bishop of Hogan, favor James the Diocese of Altoona-Johns- town, and St. Therese’s Catholic Church. Critical to the is resolution of this case our court’s of standard review. A judgment only n.o.v. should be in clear entered a case and doubts must be resolved in of any favor the verdict winner. Redevelopment Atkins v. Urban Authority Pittsburgh, 489 of (1980). 344, 100, Pa. 414 A.2d 103 We must view evidence light most favorable to Michael Hutchison as verdict winner, him the of giving every benefit reasonable of inference arising Any fact therefrom. conflict the evidence must be his favor. Broxie v. Household Finance Compa resolved 373, 741, (1977). ny, 472 Pa. 372 A.2d 745 to important It is reviewing judge’s, note that a or justice’s, “appraisement of to on evidence is not be based how he would have voted of jury, been member but on the facts as they come through deliberations.” Brown v. jury’s the sieve of the Express, Shirks Motor 367, 374, (1958); 393 Pa. 143 A.2d 379 Raeuchle, v. Moure 394, 1003, (1992). Pa. 529 604 A.2d 1007 that, case, It is the of application legal these tenets in this requires vacation than rather affirmance of the Superior Court’s order. (Second)

Section 317 the Restatement of Torts imposes upon a a duty master to control his acting servant while scope outside employment servant’s order protect from To others harm. establish under liability section alia, 317, inter establish, a plaintiff must that the “is servant upon premises in possession of the master or upon which privileged the servant only enter as his servant.” Re- (Second) 317(a)(i). § statement of Torts judice The case sub was tried before a The jury. jury was specifically charged only with the elements of section 317 with respect Bishop Hogan and potential liability. the Diocese’s we all As Appellees. verdict jury The rendered instructions, Common- that the has followed presume (1992), Baker, 531 Pa. 614 A.2d wealth v. Bishop Hogan finding liability part on the jury’s that Father necessarily based on determination Diocese solely room due privileged to enter the motel Luddy was before us is status. The narrow issue whether priestly proved liability part on Michael Hutchison that Father by establishing Diocese Hogan and the only premises enter the of the motel room privileged was to his priestly because of status. so why of discloses this issue is difficult

Review the record to be a as what seemed to to resolve. Hutchison testified why Luddy to with Father sought number of reasons he meet one, Thus, and than in the motel room in 1982 1984.2 rather the Luddy’s entry for Father into straightforward reason numerous, review, we confronted motel room for our are with inconsistent, Luddy’s for Father pres- and reasons arguably ence.

Yet, reasons, of or inconsis- simply because a number even reasons, as Father by why Hutchison to tent were offered the motel room not Luddy privileged was to enter does finding because the necessarily preclude liability. of This is all, fact, or permitted part, the of to believe jury, as finder from a testimony none of the Even parts evidence. agree majority be I with the that St. Therese’s Catholic Church cannot reassigned St. to Luddy held Father was from Therese’s Church liable. 1980, years prior the Mary’s Church in two to incidents at issue Thus, Luddy serving priest not at St. this case. Father was as question of and Church at the time the incidents Therese's Moreover, place- years. regarding done two decisions so for least ment, parish discipline, priests and of were not made at the transfer do not believe that St. Therese’s level. Under these circumstances I be Church can held liable. dissent, by majority direct 2. As noted and Hutchison testified on sought and the reasons he to meet on cross-examination (1) (2) Luddy; Luddy Father Father in 1982 and 1984 were: he missed (3) Luddy Luddy help depression; with his Father Father could him kind, listener; (5) (4) Luddy person; he good was a was Father nice (5) Luddy; his Father had love in heart for Father believed that Luddy financially. Additionally, might Hutchison testified assist Luddy upon priest. as that he still looked Father his

73 single may witness be embraced discarded jury. Evans, 496, 458, (1998); v. 551 Pa. 711 Martin A.2d 463 London, 566, 549, v. 461 Pa. 337 Commonwealth A.2d (1975); Hawthorne, v. Pa.Super. Juchniewicz 44 A.2d (1945). Thus, even to the extent the testimony can be contradictory, jury viewed as free accept certain aspects testimony of reject Hutchison’s others. Since the jury accepted, upon, could have parts and relied those testimony Hutchison’s which established that Hutchison sought personal Father counseling problems and at all times viewed Father as his priest, could found a causal link Luddy’s have between Father status Therefore, a priest entry into motel room. review, our upon based limited standard believe that we compelled finding are uphold jury’s liability against Bishop Hogan and the Diocese.

The dissent takes a different tack reach its conclusion. Specifically, the dissent finds that none of the reasons offered by Hutchison satisfies the requirements section 317. so, doing very dissent takes a narrow view what duties; essence, constitutes priestly the dissent confines priestly performance duties of church ritual. Dissent- I ing Opinion, page 1066. believe that this interpretation is Rather, too circumscribed. I counseling believe that one on personal problems is of part the varied of clergyper- duties son. While the is dissent that those correct who do not don the priest might robes of a personal counsel individuals on matters, fact the remains that Father Luddy priest, was a personal whose duties included at counseling, the time Hutchi- son sought presence. Just because other professions might perform similar services does not make these services any Thus, less a of part priest’s I duties. believe the dissent’s position, while supportable, is one that I join. cannot

While I join cannot the dissent as to disposition the ultimate this I appeal, join of do the dissent with respect to its discussion of the propriety of the Superior Court’s exclusive on focus 317. Opinion, page section Dissenting footnote Specifically, I expressly myself disassociate from that part faults the Court for Superior which majority opinion the liability on which the was not jury to failing review theories solely liability pursuant was instructed on The charged. causes of action potential similar or 317. Other to section may the While an court jury. appellate to presented basis, on an alternative the of the court below affirm decision Products, Inc., Co., 475 Pa. & Inc. v. Iceland E.J. McAleer it 441, 443, (1977), I n. 4 do not believe 381 A.2d to reviewing inject for a court new sound jurisprudentially the appellate into the recovery proceedings theories of brought were never to those theories stage, especially when jury. the attention the reasons, I the result reached concur

For above-stated majority. by

SAYLOR, Justice, concurring. as it majority insofar join I in the result achieved jury’s finding liability affirms the parish absolves (Sec- under Restatement and the Diocese ond) § 317. of Torts Superior to to the the matter is be remanded

Since by Appellant, raised of all other issues for consideration punitive entitlement to including plaintiffs’ specifically unable, join in procedural juncture, at this damages, I am conduct as characterizations the defendants’ majority’s it will abhorrent inasmuch as be reckless and instance, Court, punitive the award of the first assess jury. on to the damages presented based the facts joins concurring ZAPPALA opinion. Justice CASTILLE, Justice, dissenting. court, reviewing our task is respectfully dissent. As a it without governing apply law

simply ascertain in a grows This task more difficult case passion prejudice. one, a engender great the facts deal of such as this where for the victim. sympathy the tortfeasor and outrage against Nevertheless, is I the law fixed and governing believe that

75 clear, precludes and that it liability Bishop Hogan, either Church, Therese’s Catholic or the of Diocese Altoona- I am Consequently, Jamestown. constrained to dissent. The threshold determination that must be tort any made is duty case whether a of care is owed the the defendant to duty owed, If of plaintiff. a care then a determination must be made as to what level of care required was discharge there a duty, whether was breach of the duty, whether the damages, breach caused and what the damages were. Martin Evans, 496, 502, (1998). 458, v. 551 Pa. 711 A.2d 461 This has adopted Court Section of of the Restatement Torts determining employer whether an duty owes to third party to control conduct of a servant when that servant is acting scope employment. outside See v. Dempsey Walso Bureau, Inc., 562, 568, (1968)(col 431 Pa. 246 A.2d 317).1 lecting appellate cases since this adopted Court Section Section 317 as follows: provides

§ 317. DUTY OF MASTER TO CONTROL CONDUCT OF SERVANT

A duty master is under a to exercise reasonable care toso control his servant acting while outside scope of his employment to prevent intentionally from harming others from so conducting himself as to create an unrea- them, sonable risk if bodily harm to (a) the servant Opinion

1. Announcing Judgment The suggests the Court that the Superior duty Court erred on by limiting the issue whether existed analysis implying its to Section “case law” should have been separate apart considered from Section glean cannot lies, putative wherein the error since the “case law” of this Court has explicitly adopted determining Section 317 for whether a exists in Moreover, Dempsey, supra. circumstances such as these. jury was charged only under Section with respect Restatement However, appellees’ potential liability. R.R. at Opin 151a-159a. Announcing Judgment ion of the Court here believes that it is appropriate support theory liability a verdict with reference to a upon reasons, which the even charged. never I7orall these properly analysis confined its to Section 317 of the Thus, Dissenting Opinion exclusively why Restatement. focuses on precludes liability. Section 317 76

(i) or in of the master possession upon premises the is his only to as privileged the servant is enter upon which servant, or master, and

(ii) using of the a chattel is (b) master the

(i) to ability that he has the or reason to know knows has servant, and control his

(ii) necessity opportuni- or know of the knows should control. such ty exercising the Thus, Judgment the Announcing Opinion while the in negligently that acted appellees well be correct may to neglecting in Luddy, in to or failing discipline retaining altogether, this determination away from children keep is unless a determination legally significant is not itself to under appellant a that owed appellees first made the at issue. Since at time of the incidents 317 the Section case, premises posses- not upon was Luddy, servant in this acts, the alleged negligent of master at the time sion Luddy upon was whether inquiry of the becomes essence his master’s as privileged only was to enter which he premises 317(a)(ii). (Second) § The evidence Torts servant. Rest. trial, most favorable light when viewed in the even adduced winners, finding a support as did appellants to verdict Michael Hutchi- was to enter Luddy privileged his status as a servant —in only room due to son’s hotel Altoona-Johns- a of the Diocese of priest case status as priest a succinctly, Luddy’s status as town. Stated to Luddy to to ask Hutchison’s decision Diocese was irrelevant room. Luddy access the hotel him and to allow meet that, 1984 in both the 1982 and first to note important It meeting encounters, Luddy requesting a Hutchison’s calls Thus, Hutchi- Luddy gain did not access to were unsolicited. priest; his status by explicitly invoking room son’s hotel instead, called and asked Hutchison gained he access because sought that he testify Hutchison did not meetings.2 for the one, Judgment Opinion Announcing the of the Court footnote which Hutchison way we characterize the manner in quarrels with Luddy in order meeting Luddy perform any with sort of simply priest. function or To religious because departed when Hutchison for Altoona to contrary, arrange meetings Luddy, did not even know priest if was still a of Altoona-Johns- Diocese Thus, R.R. at 1040.3 it town. defies reason suggest as a Luddy’s standing priest the Diocese Altoona- impetus Johnstown provided sole for Hutchison’s visits when Hutchison himself testified that he was not even sure Luddy’s priestly arranged status at the time he the visits with Luddy. not provide any

While Hutchison did which testimony would Luddy an support inference was allowed access to the solely by hotel room virtue of his status as a priest in the Altoona-Johnstown, of Diocese provide Hutchison did testimo- ny which established number other motivating factors behind his to out Luddy. decision seek While existence one any of these factors would to preclude be sufficient 317(a)(ii), liability under Section the combination of factors in present this application case renders the governing law most simple task.

First, regarding the encounter, 1982 Hutchison testified away that he ran from in his home in Akron order to return to him, Altoona his because father was beating because he did Luddy allowed to Apparently have access to his hotel room. it is judicial matter of for Opinion Announcing Judgment notice that, the Court at the moment Luddy that Hutchison allowed to enter rented, into the room he had Hutchison’s will was overborne and he incapable "voluntarily” was allowing Luddy any into his room. event, it is undeniable that it was Hutchison who first initiated contact incidents, Luddy respect with with to the and that it was permitted Luddy Hutchison who rented a room and to enter into that room on each occasion. Q: you Matter of fact I it hiking take undertook hitch to trek knowing Altoona from Ohio not even if assigned Father still Mary’s you? Parish ... didn’t figured IA: he was still there sir. Q: you But didn’t know? being positive A: As far as I no sir didn’t. Q: just You took a chance he would be there? A: Yes sir. R.R. at 1028a. his Ohio, he missed and because friends many have his motives regard specific With Pennsylvania.

friends hotel room upon him in his Luddy to visit inviting Altoona, as follows: Hutchison testified return to (sic). just wanted call see Q: Alright You he feeling person and was the you depressed because to talk to? you wanted (sic) Luddy allot sir.

A: I Father missed help you your depres- he Q: feel could you And did sion?

A: I feel he could. Yes did money your part played find out what Q: I want to wanting your to see got back to Altoona you decision once call friends, money your decision part played what Luddy? Father he help me out ‘cause

A: Father would Sir knew throughout years things a lot of nice me had done out. help I knew would me to Father? Father, you say what did Q: You said home, a at having problems that I was lot A. I told him Ohio, I to him. I wanted see living like and and that didn’t gentlemen of the you I told the ladies and Q: And think you depressed jury you Luddy told Father listener good talk him he was a wanted to because you right?

A: Yes sir. A according you? kind

Q: person apparently He was a nice person?

A: Yes sir. 1039a;

R.R. 1166-67. encounter, fol- provided the 1984 Hutchison Regarding for with meeting his motives testimony regarding lowing Luddy:

Q: Why did you you decide wanted to see Father Luddy this time?

A: I him really again Because had missed and I still had him deep love heart for sir. my Q. you you came in the fall of 1984 When when said more or Luddy you less to see Father because needed money did you give he expect you that would two hundred dollars more for sex another act?

A. I didn’t know how much give he would me. I knew he help money would me out with some sir.

Q. you You knew he would give money some a sex act right?

A. he’d, Not a act but figured sex kind of I got used to him with me having sex and when I him get around he never could keep his hands off me so I figured he would have with sex me that time.

Q: you money? And would give A: I figured help he would me out sir yes.

R.R. at 1200a-1204a. sum, Hutchison testified that he arranged the

1984 meetings with Luddy because he Luddy, missed he was depressed, to, he wanted someone to Luddy talk he knew person bis good kind and a listener who could help depression, he love in deep his heart for Luddy, and he thought Luddy him might give some money.4 Clearly, Hutchi son personal problems had number of of a spiritual or —none religious nature —and he thought that Luddy might be able to assistance, offer otherwise, financial or in dealing with Opinion Announcing Judgment 4. The points of the Court to conflict- examination, ing testimony, adduced on direct money on the role that played Luddy in Hutchison’s decision invite into hotel room. however, point, myriad The is that factors entered into Hutchison’s apart Luddy from priest the fact that was a in the Diocese of mind— Altoona-Johnstown —when made to call decision arrange meeting. a 1984, Even if he had been ousted from the Priesthood in possessed qualities still would have all the that led Hutchison seek precisely his assistance at these why times. This Luddy Hutchison stated sought though that called out even Luddy’s he had priestly no idea of Opinion status at these times. The Announcing Judgment simply the ignores of the Court this fact. depression able to with being help these problems. While many be that may qualities priests a listener being good inextricably are not intertwined certainly possess, they becoming a priest stop A does not of Priesthood. the notion depressed; help to who are people if he is unable priest to who are does being help people depressed conversely, able the fact that Hutchison priest. Similarly, a not make one Luddy’s to Luddy inherently is not related loved and missed admission, Thus, Hutchison a his own priest. status as for from his status apart into the room reasons Luddy allowed Altoona-Johnstown. a in the Diocese of priest as the that he testimony, of Hutchison’s own notion light Luddy into inviting or hesitated from the might have refrained entry to that immediately prior if had announced Luddy room a in the Diocese of Altoona-Johnstown longer priest he was no Yet and common sense.5 flies in the face of both the record on required impose liability in order to this is what would be the Diocese Consequently, Diocese under Section 317. In the absence no under Section appellant owed the Diocese a cannot recover duty, appellant of such negligence. that, Luddy’s originally were it not may It well be true status, young never have met Michael he would priestly Hutchison, which of sexual abuse repeated incidents come to Howev- pass.6 would never have Hutchison endured signifi- Announcing Judgment of attaches Opinion the Court 5. The Priest, Hogan you’re that a testified "if cance to the fact that every day, day year.” may It be true you’re a Priest hours times, question priests at all but the relevant under priests are why into his hotel is Hutchison chose allow Restatement excerpted testimony Luddy’s standing priest, as the illus- room. trates, into his to Hutchison’s decision allow him irrelevant room. nega- Announcing Judgment Opinion of the Court takes this 6. The attempts into a tive out of its context and to convert it causal inference Luddy’s provide priestly positive status did causal inference into his hotel impetus which drove Hutchison invite him exclusive Announcing logic, Opinion Judgment As matter of room. Luddy might approach The fact that never the Court’s here unsound. priest opportunity to was not a have meet Hutchison if status, way only Luddy's priestly any it does not in entail that was er, very appeal narrow issue is whether Luddy’s status, alone, and his priestly priestly status allowed to to Hutchison’s room secure access hotel on the two occasions in 1982 and 1984. Hutchison’s testimony own categorically negates any notion conceivable of an exclusive causal nexus Luddy’s status priestly entry between and his to the hotel Instead, room. testimony Hutchison’s plainly establishes that into hotel reasons, allowed his room for a number of of to Luddy’s standing all which were unrelated as priest a the Diocese Altoona-Johnstown. sum, appellant’s own testimony appellees establishes that not him duty

did owe a under Section 817 of the Restatement. appellees Because owed no such duty respect with to the two issue, incidents appellant’s cause of in negligence action may be sustained. Accordingly, am constrained to dissent.7 factors,

not other which caused Hutchison allow him access question. hotel on room the occasions in I note Opinion Announcing that the Judgment of the Court in this matter conferring should not be viewed as imprimatur this Court’s on a against cause of action religious sect under Section for Constitu- purposes. supreme tional A number of other state courts have declined religious authorize cause of action negligent sect for religious retention its leaders so because do would result in entanglements religious excessive contrary beliefs to the First Amendment the United States Constitution. See v. Archdio- Pritzlaff Milwaukee, (1995); cese 194 Wis.2d 533 N.W.2d 780 Gibson v. Brewer, (Mo.1997); 952 S.W.2d 239 Swanson v. Roman Catholic Portland, (Me.1997). commenting A.2d 441 Without on the decisions, merit of these simply I note issue of excessive matter, and, entanglement was not before this accordingly, Court in this having should not be viewed as been laid to rest this decision.

Case Details

Case Name: Hutchison Ex Rel. Hutchison v. Luddy

Court Name: Supreme Court of Pennsylvania

Date Published: Nov 24, 1999

Citation: 742 A.2d 1052

Docket Number: 0056 W.D. Appeal Docket 1997

Court Abbreviation: Pa.