J-S47011-16


                             2016 PA Super 189

A.S., JR.,                                   IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                         Appellee

                    v.

KATHLEEN G. KANE, ATTORNEY
GENERAL, COMM. OF PA, LAWRENCE M.
CHERBA, EXECUTIVE DEPUTY ATTY.
GENERAL, COMM. OF PA, LAURA A.
DITKA, CHIEF DEPUTY ATTY. GENERAL,
COMM. OF PA

APPEAL OF: KATHLEEN G. KANE,
LAWRENCE M. CHERBA, AND LAURA A.
DITKA

                                                  No. 2051 MDA 2015


               Appeal from the Order Entered October 28, 2015
                In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-MD-0001010-2015


BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.

OPINION BY SHOGAN, J.:                           FILED AUGUST 25, 2016

      Kathleen G. Kane, Attorney General of the        Commonwealth of

Pennsylvania, Lawrence M. Cherba, Executive Deputy Attorney General of

the Commonwealth of Pennsylvania, and Laura A. Ditka, Chief Deputy

Attorney General of the Commonwealth of Pennsylvania (collectively “the

Office of Attorney General”), appeal from the order entered on October 28,
J-S47011-16


2015, that overruled the denial of the private criminal complaint filed by

A.S., Jr. (“Appellee”).1 After careful review, we reverse.

       The relevant background of this case was set forth by the trial court as

follows:

             On October 6, 201[4], [Appellee] filed a Private Criminal
       Complaint by first class mail on Stacy Parks Miller, District
       Attorney for Centre County, Pennsylvania, and Kathleen G.
       Kane, Attorney General for the Commonwealth of Pennsylvania.
       Although Ms. Parks Miller gave no formal notice of recusal, the
       Office of Attorney General assumed jurisdiction over the matter.
       [Appellee] asserts he is the victim of criminal offenses
       committed by Gerald A. Sandusky. Specifically, [Appellee]
       alleges Sandusky committed the following crimes: Involuntary
       Deviate Sexual Intercourse (18 Pa.C.S.A. § 3123(a)), Sexual
       Assault (18 Pa.C.S.A. § 3124.1), Indecent Assault (18 Pa.C.S.A.
       § 3126(a)(1)-(2)), and Corruption of Minors (18 Pa.C.S.A. §
       6301(a)(1)(a)). After the denial of his Private Criminal Complaint
       by the Office of Attorney General, [Appellee] sought review in
       [the Centre County Court of Common Pleas] pursuant to
       Pennsylvania Rule of Criminal Procedure 506.

                                          * * *

             Pursuant to Pennsylvania law, a private criminal complaint
       must set forth a prima facie case of criminal conduct. In re
       Private Complaint of Adams, 764 A.2d 577 (Pa. Super. 2000).
       “The district attorney must investigate the allegations of a
       properly drafted complaint to enable the exercise of his
       discretion concerning whether to approve or disapprove the
       complaint.” In re Wilson, 879 A.2d 199, 211 (Pa. Super. 2005).
       When a complaint has been denied, the complainant may seek
       review in the Court of Common Pleas. Pa.R.Crim.P. 506. Upon
       review, the Court must first identify whether the prosecutor’s
       denial was based upon a legal evaluation of the complaint, or
       upon policy considerations. Wilson, 879 A.2d at 212. When the
____________________________________________


1
  Due to the fact that a sexual offense was alleged, we identify Appellee in
the caption and in our discussion utilizing initials only.



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J-S47011-16


      decision to deny the complaint is a legal one, the trial court
      conducts a de novo review, whereas when the decision is based
      on policy considerations, the trial court accords deference to the
      decision and should not interfere absent bad faith, fraud, or
      unconstitutionality. Id.

            After a review of [Appellee’s] Private Criminal Complaint,
      and an investigation, which included a meeting with [Appellee],
      the Office of Attorney General denied the Complaint on the basis
      that the statute of limitations for bringing the alleged charges
      had passed. This is a purely legal decision, and therefore, this
      Court reviews the denial de novo. In its letter denying the
      Private Criminal Complaint, the Office of Attorney General
      explained that the public employee exception, 42 Pa.C.S.A. §
      5552(c), would have to be applied twice, and “that type of
      stacking appears to be prohibited by the statute as written.” This
      Court does not agree.

Trial Court Opinion, 10/28/15, at 1-3.         The trial court concluded that

Appellee was entitled to the benefit of the amended statute of limitations at

42 Pa.C.S. § 5552, found that his cause of action was not time barred, and

overruled the denial of Appellee’s private criminal complaint. Id. at 6-7.

      Following the trial court’s order overruling the denial of the private

criminal complaint, the Office of Attorney General filed a timely appeal. On

appeal, the Office of Attorney General raises one issue:

      I. IS THE PROSECUTION OF [Appellee’s] PRIVATE CRIMINAL
      COMPLAINT AGAINST GERALD SANDUSKY BARRED AT THIS
      JUNCTURE BY THE APPLICABLE STATUTE OF LIMITATIONS?

The Office of Attorney General’s Brief at 4.

      We begin our analysis by reiterating that when the prosecuting

attorney disapproves a private criminal complaint on the basis of legal

conclusions, the trial court undertakes de novo review of the matter.


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Wilson, 879 A.2d at 214.     On appeal, this Court reviews the trial court’s

decision for an error of law. Id. “As with all questions of law, the appellate

standard of review is de novo and the appellate scope of review is plenary.”

Id.

      Initially, we note that on November 13, 2015, after the order in the

case at bar was filed, the Commonwealth Court decided Sandusky v.

Pennsylvania State Employees’ Retirement Board, 127 A.3d 34 (Pa.

Cmwlth. 2015). In that case, the Commonwealth Court found that Sandusky

retired from Pennsylvania State University after the 1999 football season.

Id. at 37. Here, following the notice of appeal and the Office of Attorney

General’s filing of a Pa.R.A.P. 1925(b) statement, the trial court considered

the Sandusky decision in its Pa.R.A.P. 1925(a) opinion.       The trial court

concluded that the statute of limitations was five years from the date of

Sandusky’s termination of employment in 1999.          Thus, the trial court

reversed its earlier position and opined that the cause of action was time

barred. Pa.R.A.P. 1925(a) Opinion, 12/23/15, at 2.

      The applicable statute of limitations in this case was amended several

times between the date the offenses allegedly occurred and the date

Appellee brought the private criminal complaint on October 6, 2014.       The

impact of these amendments is addressed in 1 Pa.C.S. § 1975, as follows:

      Effect of repeal on limitations

      Whenever a limitation or period of time, prescribed in any
      statute for acquiring a right or barring a remedy, or for any

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       other purpose, has begun to run before a statute repealing such
       statute takes effect, and the same or any other limitation is
       prescribed in any other statute passed by the same General
       Assembly, the time which has already run shall be deemed part
       of the time prescribed as such limitation in such statute passed
       by the same General Assembly.

1 Pa.C.S. § 1975. In addition, this Court has explained that “when a new

period of limitations is enacted, and the prior period of limitations has not

yet expired, in the absence of language in the statute to the contrary, the

period of time accruing under the prior statute of limitations shall be applied

to calculation of the new period of limitations.”         Commonwealth v.

Harvey, 542 A.2d 1027, 1029-1030 (Pa. Super. 1988).            However, if the

prior statute of limitations expired before the new statute of limitations

became effective, “[c]ase law is clear that in those situations, the cause of

action has expired, and the new statute of limitations cannot serve to revive

it.” Id. at 1030.

       In the case at bar, the criminal activity was alleged to have occurred in

June of 1988.      At that time, the applicable statute of limitations under 42

Pa.C.S. § 5552 (Act 199 of 1984)2 required the prosecution to commence

within five years from the date of the offense. Accordingly, the mechanical

run date would have been June 30, 1993.



____________________________________________


2
 Each amended statute appears at 42 Pa.C.S. § 5552. Thus, we refer to the
multiple versions by the Act number and year.



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      Prior to the mechanical run date of June 30, 1993, on February 19,

1991, the relevant statute of limitations was again amended. Section 5552

(Act 208 of 1990) was amended to provide that prosecution must be

commenced within five years from the date of the victim’s eighteenth

birthday.   However, Act 208 of 1990 also provided a public-employee

exception, which stated that even if the relevant statute of limitations

expired, a prosecution may be commenced for: “Any offense committed by a

public officer or employee in the course of or in connection with his office or

employment at any time when the defendant is in public office or

employment or within five years thereafter, but in no case shall this

paragraph extend the period of limitation otherwise applicable by more than

eight years.” Act 208 of 1990.

      At the time section 5552 was amended by Act 208 of 1990, the statute

of limitations under Act 199 of 1984 had not expired. Accordingly, Appellee

was entitled to the newer statute of limitations. Harvey, 542 A.2d at 1029-

1030. Thus, the statute of limitations would expire on December 26, 1994,

five years after Appellee’s eighteenth birthday. However, due to the public-

employee exception, that mechanical run date could be extended eight

years. Because Mr. Sandusky was still a public employee in 1994, the eight-

year extension applied and resulted in the statute of limitations expiring on

December 26, 2002.




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J-S47011-16


      On August 22, 2002, Act 86 of 2002 extended the statute of

limitations to the victim’s thirtieth birthday.      Because the statute of

limitations under Act 208 of 1990 had still not expired as of the effective

date of Act 86 of 2002, the mechanical run date became December 26,

2001, Appellee’s thirtieth birthday. However, we must take into account the

public-employee exception, and therefore determine when Mr. Sandusky left

his employment at the university.

      As mentioned above, on November 13, 2015, the Commonwealth

Court decided Sandusky.        In that opinion, the Commonwealth Court

concluded that Mr. Sandusky retired in 1999.      Id. at 40.   It is, however,

unclear as to whether Mr. Sandusky’s employment terminated on June 29,

1999, the day he signed his retirement papers, or on December 29, 1999,

the day after the Alamo Bowl when Penn State’s football season concluded.

For purposes of our discussion, this determination is ultimately of no

moment.    Even if we use the later of the two dates, December 29, 1999,

Appellee’s private criminal complaint was untimely. In applying the public-

employee exception, prosecution of Mr. Sandusky had to be commenced

within five years of his termination of public employment. This results in a

run date of, at the latest, December 29, 2004.

      Effective January 29, 2007, Act 179 of 2006 amended section 5552.

Pursuant to this amendment, the statute of limitations was extended to a

victim’s fiftieth birthday. We conclude, however, that Appellee is not entitled


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to the benefit of Act 179 of 2006 because, as of the effective date of Act 179

of 2006, January 29, 2007, the December 29, 2004 run date we determined

above had passed.       Accordingly, the time in which Appellee could have

brought his claims had expired prior to the effective date of Act 179 of 2006.

      For the foregoing reasons, we conclude that Appellee’s October 6,

2014 private criminal complaint was time barred as the statute of limitations

had expired. Accordingly, we reverse the trial court’s order that overruled

the Office of Attorney General’s denial of Appellee’s private criminal

complaint.

      Order reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2016




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