author: ABRAMSON, J.,

text:
    Moore v. Moore

      Ralph Samuels, for plaintiff.

      Adrian King, for defendant.
    January 22, 2002—
   ABRAMSON, J.,

I. FACTS AND PROCEDURAL HISTORY

Plaintiff-appellant, Marian Moore, brought an action for battery against her cosmetic surgeon defendant-appellee, John H. Moore Jr. M.D., for failure to obtain her informed consent to liposuction of fat from her cheek. Plaintiff testified to the following: (1) she presented to defendant for “chin augmentation or any corrective procedure” for the purpose of correcting asymmetry to her face as a result of a previous cosmetic surgery (N.T. May 30, 2001, pp. 74-75) (see attached copy of photograph of plaintiff marked as exhibit “M-16”) [not published here], (2) after consulting with defendant, she signed a consent form to undergo both an anterior face lift and liposuction, (3) in conversations with defendant regarding the liposuction, she limited her consent to liposuction only in the “chin-jowl” region, (4) in addition to performing liposuction in the chin-jowl region, defendant also performed liposuction above the chin-jowl region, that is in the cheek, without consent, (see attached copy of photograph of plaintiff marked as exhibit “M-17”) [not published here], (5) as a result of the battery, she consulted with seven cosmetic surgeons to determine if the injury could be fixed, and underwent a fat grafting process one year after surgery.

Trial commenced on May 29, 2001. Plaintiff did not present expert testimony during her case in chief. At the close of plaintiff’s case, defendant moved for a nonsuit. This court granted a nonsuit on June 1,2001. The entering of the nonsuit was the subject of plaintiff’s post-trial motion. That motion was denied. Plaintiff then took this appeal. Plaintiff claims that the court erred in (1) granting the nonsuit, and (2) granting the nonsuit in contradiction to three of the court’s previous rulings: (i) granting plaintiff’s motion in limine to preclude expert testimony, (ii) denying defendant’s motion for summary judgment, (iii) dismissing as moot plaintiff’s motion to strike defendant’s motion for summary judgment as untimely, and (3) denying plaintiff’s oral and untranscribed motion to continue the case to allow plaintiff to depose her expert for trial, and to permit plaintiff’s expert to testify.

n. STANDARD OF REVIEW

Motion for Nonsuit

The standard for deciding whether to grant a nonsuit is well-established in this Commonwealth. Compulsory nonsuit is properly granted where plaintiff has “failed to establish a right to relief.” Pa.R.C.P §230.1. A nonsuit is proper “only if the fact-finder, viewing all of the evidence in favor of the plaintiff, could not reasonably conclude that the essential elements of a cause of action have been established.... A compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established and the plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from that evidence, resolving any conflict in favor of the plaintiff.” Shannon v. McNulty, 718 A.2d 828, 829 (Pa. Super. 1998).

m. PRIMA FACIE CASE FOR MEDICAL BATTERY

The court entered a nonsuit because it concluded that plaintiff presented insufficient evidence, and expert testimony was necessary for the jury to conclude that the cheek is anatomically distinct from the jowl and chin regions of the face, or that liposuction to the cheek was not substantially the procedure consented to, in light of the symmetry plaintiff desired.

The issue was whether the jury could have reasonably concluded that defendant was not permitted, within the terms of the consent given, and in light of the result desired, to perform liposuction to the cheek. To establish a prima facie case of medical battery, a plaintiff must prove “that the operation performed, or substantially that operation, was not authorized” by her. Dicenzo v. Berg, 340 Pa. 305, 307, 16 A.2d 15, 16 (1940) (holding that the evidence was not sufficient to justify a finding that plaintiff had not consented to an incision in the neck during upper shoulder surgery in light of the necessity of the surgery to alleviate the condition plaintiff was suffering). While generally, expert testimony is required in medical malpractice actions, expert testimony is not required where the matter alleged is so simple that the lack of skill or want of care is so obvious as to be within the range of the ordinary experience and comprehension of even nonprofessional persons. Grabowski v. Quigley, 454 Pa. Super. 27, 34, 684 A.2d 610, 615 (1996) (holding that expert testimony is not necessary to prove a battery where a different surgeon performed the surgery than the surgeon plaintiff consented to). In battery cases, for example, expert testimony is not required where the touching of the area which was not consented to is obvious. Montgomery v. Bazaz-Sehgal, 742 A.2d 1125 (Pa. Super. 1999) (holding that expert testimony is not required to prove a battery where the patient consented to surgery for the clearing of a plaque blockage inside his penis and did not consent to the implantation of permanent inflatable prosthesis in his penis).

The above cases, where no expert was required to prove a battery, are distinguishable from this case because they involve touchings that clearly deviated from the touchings consented to, such as the permanent prosthesis versus no prosthesis and one surgeon versus another surgeon. The differences between jowl, chin-jowl, cheek, and chin are more subtle, if at all. A plain reading of the ordinary definitions of jowl, cheek, and chin make clear that there is an overlap between these three areas of the face. Webster’s Encyclopedic Dictionary of the English Language defines cheek as “from Swedish: kek the jaw, and kak, the cheek; the side of the face, below the eyes on each side.” Jowl is defined from the same source as “from Anglo-Saxon ceafl, the jaw; the hanging of the flesh of the jaw, as in a fat person.” Chin is defined from the same source as “from the Latin gena, the cheek; Greek, genys, the jaw; Sanskrit, hania, the jaw; Gothic, kinnus, the cheek, the lower extremity of the face below the mouth.” Hence, the jowl is a loose-fitting cheek. Plaintiff’s proffered definitions are substantially the same and, once considered, led the court to the same conclusion.

In light of the above-referenced definitions, and in the absence of contrary expert testimony, the jury could not reasonably have concluded that liposuction to the cheek was not substantially the same operation as liposuction to the chin and jowl region. Just as in Dicenzo where the court found that an incision in the neck was substantially the same operation as surgery to the upper shoulder, we found that liposuction to the chin and jowl region was substantially similar to liposuction to the cheek, and no reasonable jury could have concluded otherwise. Dicenzo, 340 Pa. at 309-310, 16 A.2d at 17. The defendant was retained to sculpt an area of a face, not remove a mole. Liposuction is an internal surgery to the face with all the inexactitude attendant to non-cosmetic internal surgery to the body. See generally, Gray v. Grunnagle, 423 Pa. 144, 152-53, 233 A.2d 663, 667-68 (1966) (discussing that “where an internal operation is indicated, a surgeon may lawfully perform, and it is his duty to perform, such operation as good surgery demands . . . [and] the law does not insist that a surgeon shall perform every operation according to plans and specifications approved in advance by the patient, and carefully tucked away in his office-space for courtroom purposes.”). Here, there was no evidence that there was such control over the procedure to be had that the surgeon could have been properly charged with an offensive touching. For this, plaintiff would need an expert. In fact, plaintiff consented to liposuction of the chin and jowl “region” and presented to defendant for the purpose of “chin augmentation or any other corrective procedure” to correct “noticeabl[e] asymmetr[y]” of her face. (N.T. May 30, 2001, p. 75.) Shortly before surgery, defendant “pinched my left chin-jowl region and said, ‘We’re going to tighten up that area of concern for you.’ ” (N.T. May 30, 2001, p. 102.)

Plaintiff argued that the jury could have determined, in considering the terms “chin,” “jowl,” and “cheek” in the context used by the parties, that she “specifically told the defendant to leave alone,” and defendant never discussed with plaintiff, the site from which he would remove fat. (Plaintiff’s memorandum in support of her post-trial motion, pp. 14, 15.) This argument is not supported by the record. An examination of the transcript revealed that she did not designate an area of her face as off-limits in this procedure, and plaintiff points to no citation. The transcript shows that plaintiff testified that defendant mentioned “fullness” on one side of her face. In response, she told him she “w[as]n’t worried about that” and “directed] his attention to [her] chin/jowl.” (N.T. May 30, 2001, p. 88.) Plaintiff’s testimony does not rise to the level of express will to leave the site alone. Plaintiff failed to demonstrate by sufficient evidence that the procedures she expressly sought were both conditioned upon a certain anatomical site not being touched in the process. And no expert testified that the desired result could have been achieved without touching the supposed off-limit site. As for plaintiff’s argument that the jury could have determined the definitions of “jowl,” “chin,” “chin-jowl,” and “cheek” based on the “context” of the usage of the words in the parties’ testimony, the court found no such context established, especially in light of the absence of evidence that she expressly communicated to defendant that there was such a difference. Plaintiff’s further reliance on defendant’s deposition testimony to show a “context” is also misplaced. Although the transcript reveals that the defendant’s deposition was not read to the jury, even assuming the jury had the benefit of his testimony, it would be to no avail. Defendant testified that “the jowl is the lower cheek, chin.” (Dep. p. 9:24.)

IV. PRECLUSION OF PLAINTIFF’S EXPERT TESTIMONY

Plaintiff submitted that the court erred in denying her requests to allow plaintiff’s expert to testify because said rulings were contrary to the court’s orders granting plaintiff’s motion in limine to preclude defendant from presenting expert testimony, denying defendant’s motion for summary judgment for failure of plaintiff to produce an expert, and dismissing as moot plaintiff’s motion to strike defendant’s motion for summary judgment as untimely. Plaintiff contended that these two orders “taken together provide a clear indication that plaintiff had prevailed on her legal position that she did not require expert testimony.” (Plaintiff’s statement of matters complained of, p. 2 n.4.)

Plaintiff would have this court believe that she failed to call her expert or otherwise had a continuing right to call her expert in reliance upon the court’s two rulings. This could not be further from the truth. Plaintiff admitted that she served the defendant with a copy of an expert report on February 6,2001 and chose to designate it for “rebuttal” purposes. (See plaintiff’s memorandum in support of answer to defendant’s summary judgment motion, p. 1.) As an explanation for this choice in February of 2001, she stated that “because plaintiff was seeking an order determining that no expert report was necessary, she designated the same as a ‘rebuttal expert report.’ ” (Plaintiff’s memorandum in support of her post-trial motion, p. 4 n.10.) Plaintiff was apparently seeking an advisory opinion regarding the necessity of expert testimony; this is not the function of the court. Allowing the plaintiff’s expert to testify would have also required a continuance of the trial to depose the expert, which she had months to do. To have allowed the expert to testify in plaintiff’s case in chief would have resulted in unfair surprise and prejudice to the defendant who had, in reliance on the plaintiff’s representations, not retained one.

In any event, the court made no ruling that the plaintiff could proceed without an expert when it ruled on the motion for summary judgment, motion in limine and motion to strike.

In conclusion, plaintiff’s motion for a new trial should be dismissed.

      . Although plaintiffs complaint contains counts for medical negligence, failure to obtain informed consent and breach of contract, she limited her claim to battery at the time of trial.

      . Plaintiff used the word “region” which, in this context, served to lend an air of indefiniteness to her own description. (N.T. May 30, 2001, pp. 68:23, 77:7, 80:19, 86:6, 86:8, 98:6, 133:12.)

      . Plaintiff made two requests to present expert testimony. One-request was made in plaintiff’s motion to strike defendant’s motion for summary judgment (this motion was filed seven days before the case was scheduled for trial). The request was that “in the event this motion to strike is denied, plaintiff respectfully requests permission from the court to present in her case in chief the testimony of plaintiff’s designated rebuttal medical expert . . . plaintiff further requests that this court continue the trial date to provide sufficient time to take, and grant permission to take, the videotape deposition of Dr. Shiffman.” (Plaintiff’s motion to strike defendant’s summary judgment motion, p. 2, ¶12.) The other request was made orally on the first day of trial when the court gave indication that it believed expert testimony would be necessary. This request cannot be found on the record.


source: Caselaw Access Project

author: BIEHN, J.,

license: Public Domain

text:
    Commonwealth v. Budd

      C.P. of Bucks County,
    nos. 4259-01, 4234, 4235, 4236, 6201/01, 4395/01 and 4262/01.

      T. Gary Gambardella, for plaintiff.

      Richard Fink, for defendant Budd.

      John J. Kerrigan, for defendant Doyle.

      Sara Webster, for defendant Gilmore.

      William L. Goldman, for defendant McMullen.
    January 8, 2002
   BIEHN, J.,

Defendants filed a pretrial challenge to the constitutionality of the Institutional Sexual Assault Statute. 18 Pa.C.S. §3124.2. They allege that the statute is void for vagueness and overbroad. They also challenge the lack of a mens rea requirement in the statute.

At the time of the alleged incidents, defendants Budd, McMullen, and Gilmore were employed as Bucks County correctional officers. Defendant Doyle was a Bucks County prison counselor. All of the defendants have been separately charged with institutional sexual assault. Defendant Budd was charged under the original Act and the other three defendants were charged under the Act as amended in May of 2000. Although the incidents are factually unrelated, these matters were consolidated for the purpose of deciding whether the statute is constitutional.

The original Act states:

“(a) General rule. — A person who is an employee or agent of the Department of Corrections or county correctional authority commits a misdemeanor of the first degree if the person engages in sexual intercourse, deviate sexual intercourse or indecent contact with an inmate.
“(b) Definition. — As used in this section the term ‘agent’ means a person who is assigned to work in a state or county correctional facility who is employed by any state agency or any person employed by an entity providing contract services to the Department of Corrections or county correctional authority.”

The amended Act provides as follows:

“(a) General rule. — Except as provided in section 3121 (relating to rape), 3122.1 (relating to statutory sexual assault), 3123 (relating to involuntary deviate sexual intercourse), 3124.1 (relating to sexual assault) and 3125 (relating to aggravated indecent assault), a person who is an employee or agent of the Department of Corrections or a county correctional authority, youth development center, youth forestry camp, state or county juvenile detention facility, other licensed residential facilities serving children and youth, or mental health or mental retardation facility or institution commits a felony of the third degree when that person engages in sexual intercourse, deviate sexual intercourse or indecent contact with an inmate, detainee, patient or resident.
“(b) Definition. — As used in this section, the term ‘agent’ means a person who is assigned to work in a state or county correctional or juvenile detention facility, a youth development center, youth forestry camp, other licensed residential facilities serving children and youth, or mental health or mental retardation facility or institution who is employed by any state or county agency or any person employed by an entity providing contract services to the agency.”

Although defendants assert that the original Act as well as the amended Act are unconstitutionally vague and overbroad, we disagree and dismiss their motions.

In evaluating a constitutional challenge, it is important to note that there is a strong presumption that legislative enactments do not violate the constitution. Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983). Moreover, one who challenges the constitutionality of a statute has a heavy burden of persuasion. Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162 (1996). “While penal statutes are to be strictly construed, the courts are not required to give the words of a criminal statute their narrowest meaning or disregard the evident legislative intent of the statute.” Commonwealth v. Murray, 749 A.2d 513, 516 (Pa. Super. 2000). “A statute, therefore, will only be found unconstitutional if it ‘clearly, palpably and plainly’ violates the constitution.” Barud at 304, 681 A.2d at 165. “All doubts are to be resolved in favor of a finding of constitutionality.” Commonwealth v. Hendrickson, 555 Pa. 277, 280, 724 A.2d 315, 317 (1999).

Although the Act itself makes no specific reference to the degree of culpability required, 18 Pa.C.S. 302(b)(l)(i) provides that a person acts intentionally with respect to a material element of an offense if the element involves the nature of his conduct or a result thereof and it is his conscious object to engage in conduct of that nature or to cause such a result. Further, subsection (c) of section 302 provides that when the culpability sufficient to establish a material element of an offense is not prescribed by law, as in the case before us, each element is established if a person acts intentionally, knowingly or recklessly with respect there to. Therefore, the Pennsylvania Crimes Code provides for the culpability required where there is no specific reference to it in the statute itself.

DEFENDANTS’ VAGUENESS CHALLENGE

Defendants challenge the statute on the basis that it is unconstitutionally vague. The vagueness challenge consists of two prongs. First, is the statute facially invalid and second, does it violate due process? A law is void on its face and violative of due process if it is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. Commonwealth v. Savich, 716 A.2d 1251 (Pa. Super. 1998).

The Institutional Sexual Assault Statute is facially valid. The statute clearly states the conduct that is prohibited. An employee may not engage in sexual relations with an inmate. There are several strong public policies behind the statute. The efficient operation of county institutions, prisons and other county detention facilities is a legitimate government interest. So too is the protection of inmates and other individuals under county supervision. Employees of a county should not engage in any type of sexual activity with an inmate at any time. Inmates are under the supervision of the county and as such should be protected. Employees of the county, especially county employees with a day-to-day relationship with the inmates are in a position of power and have certain responsibilities. As a result of this power imbalance, a truly consensual relationship cannot exist. '

Defendants assert that 18 Pa.C.S. §3124.2 violates their due process rights under both the United States and Pennsylvania constitutions. Due process is required under the state constitution as well as under the federal constitution. Philadelphia Gas Works Co. v. Philadelphia, 331 Pa. 321, 1 A.2d 156 (1938). The terms “due process of law” in the United States Constitution and “law of the land” in the Pennsylvania State Constitution are legal equivalents. Commonwealth v. Martin, 121 A.2d 1136 (Pa. Super. 1999), reargument denied, appeal denied, 560 Pa. 722, 745 A.2d 1220 (1999).

“As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Mikulan at 251, 470 A.2d at 1342. Constitutional prohibition against vagueness does not invalidate every statute that could have been drafted with greater precision. The principal aspect of the doctrine is the requirement that legislation establish minimal guidelines to govern law enforcement. Without such minimal guidelines a criminal statute might permit a standardless sweep that allows policemen, prosecutors and juries to pursue their personal predilections. Mikulan at 251, 470 A.2d at 1342-43.

Due process requirements are satisfied if the statute contains reasonable standards to guide prospective conduct. Adelphia Cablevision Associates of Radnor L.P. v. University City Housing Co., 755 A.2d 703 (Pa. Super. 2000). The Institutional Sexual Assault Statute withstands defendants’ vagueness challenge because it provides reasonable standards to guide future conduct. Defendants assert that the statute is vague because it does not define the criminal offense of institutional sexual assault with sufficient definiteness that ordinary people can understand what conduct is prohibited by the statute. Defendants also argue that the terms “inmate” and “employee” are vague. While the terms are not defined in the statute, a person of common intelligence would understand the meaning of the terms. The United States Supreme Court held that void for vagueness simply means that criminal responsibility will not attach where a person could not reasonably understand that his contemplated conduct is prosecutable. U.S. v. National Dairy Corp., 372 U.S. 29, 83 S.Ct. 594 (1963). The statute clearly provides reasonable standards by which a person may gauge his or her future conduct. The Institutional Sexual Assault Statute is facially valid and provides due process rights by its reasonable standards.

The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. U.S. v. Harriss, 347 U.S. 612, 74 S.Ct. 808 (1954). If the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be stricken as vague even though marginal cases could be put where doubts might arise. If this general class of offenses can be made constitutionally definite by a reasonable construction of the Act, it cannot be stricken. Screws v. U.S., 325 U.S. 91, 65 S.Ct. 1030 (1945). The fact that a statute is capable of being unconstitutionally applied does not render it void for vagueness if the criminal conduct prohibited is sufficiently described. Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211 (1965).

Defendants pose several hypothetical situations in which an employee or agent of the Department of Corrections may unknowingly engage in sexual relations with an inmate. For example, a prisoner and an employee of Bucks County walk into a bar at the same time. They talk, have some drinks and then leave the bar to have a sexual encounter. The employee is never informed that the person that they had intimate contact with was a prisoner. But upon returning to the prison the prisoner offers up the employee in exchange for leniency in other matters. This as well as the other creative hypothetical situations do not render the statute void for vagueness because the prohibited criminal conduct is sufficiently described. Under this hypothetical, the employee’s conduct was not “knowing.” Therefore, the question is one of guilt or innocence rather than constitutionality. Where the facts of a particular case fall within the clear purpose of the prohibited act, its application will not violate constitutional safeguards merely because there is doubt as to its applicability in regard to other cases that may never arise. Robinson v. U.S., 324 U.S. 282, 65 S.Ct. 666 (1945), and U.S. v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167 (1930). See also, Commonwealth v. Dodge, 287 Pa. Super. 148, 429 A.2d 1143 (1981), involving a charge of prostitution; Commonwealth v. Jackson, 281 Pa. Super. 310, 422 A.2d 184 (1980), involving an implement of escape; Commonwealth v. Burt, 490 Pa. 173, 415 A.2d 89 (1986), involving vehicular homicide; and Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54 (1980).

The statute specifically identifies those persons whose conduct is prohibited. Prior to the amendment, it included an employee or agent, inter alia, of a county correctional authority. The amended statute broadens the class to include employee or agents of a number of detention and residential facilities serving juveniles or those with mental disabilities. The statute specifically defines the prohibited conduct as engaging in sexual intercourse, deviate sexual intercourse, or indecent contact. In the amended statute, the persons with whom an employee or agent may not engage in this conduct include an inmate, detainee, patient or resident. In the statute prior to amendment, such persons are described as inmates. The obvious distinction between these statutes is that the previous statute only applied to an employee or agent of the department of corrections or county correctional authority while the amended statute broadens the scope to facilities housing juveniles or those with mental health or mental retardation issues. The purpose of the amendment was not only to upgrade the offense from a misdemeanor to a felony, but also to broaden the number of people affected and protected by the statute.

The original and the amended statute define the term “agent” as a person who is assigned to work in the relevant facility. This statute adequately and with sufficient specificity describes the persons whose conduct is prohibited, the nature of the conduct and the contemplated victims of that conduct. The original statute referred to a victim as “an inmate” because at that time the statute applied only to correctional institutions. The amended statute has been broadened as it currently refers to “an inmate, detainee, patient or resident.”

Although not defined, it is clear in this case that each of the victims is an “inmate.” Any person of reasonable intelligence should know and understand that the term “inmate” refers to someone committed to a correctional facility. Webster’s Dictionary defines an inmate as a person confined, as in a prison or mental health facility. Merriam Webster’s Collegiate Dictionary 602, 10th Ed. (1995). Although one of the cases involved prohibited contact with a person on work release, that particular person is still considered an inmate at the time of the conduct. She was serving a sentence to the correctional facility and had been placed on work release pursuant to 42 Pa.C.S. §9755 which permits partial release to seek employment. Nonetheless, that person remained an inmate because she was required to return every evening and remain in confinement at night and over weekends and holidays. As such, that person’s status remained as an inmate even though at times she was outside the physical confines of the prison. It strains credulity that a correctional officer or a counselor working for a prison would not clearly understand that one who is committed, whether within prison walls or walking down the highway to a job from which she would be required to return immediately is an inmate. The sentencing statutes in Pennsylvania also provide guidance as to the definition of inmate. For example, the Sentencing Code, 42 Pa.C.S. §9724 and §9725, provide for partial confinement and total confinement respectively. Even under a sentence of partial confinement the individual is under the supervision of the court and the correctional or other institution where that individual is serving a sentence.

The cases before the court in this case fall within the purpose of the Act and are within proper police power of the state. It is clearly disruptive to maintaining a correctional institution if any type of sexual conduct or relationship between the residents and their keepers is permitted. The statute is not unconstitutional simply because the defendants’ imaginative hypothetical scenarios illustrate situations in which the statute has not been applied and may never be applied. U.S. v. Petrillo, supra. Thus, a statute should not be declared void for vagueness merely because of a doubt as to its workability in regard to other cases that may never arise. Robinson v. U.S., supra and U.S. v. Wurzbach, supra. Without this rule, fertile imagination could find a constitutional question in virtually any prohibitive statute. The constitutionality of a statute should be based upon real and not imagined infringements.

DEFENDANTS’ OVERBREADTH CHALLENGE

In evaluating defendants’ overbreadth challenge the court must determine whether defendants have standing to challenge the statute. Commonwealth v. Hendrickson, 453 Pa. Super. 533, 684 A.2d 171 (1996). The United States Supreme Court decision in Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908 (1973), provides guidance in determining defendants’ standing.

“[T]he court has altered its traditional rules of standing to permit — in the First Amendment area — ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of the judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”

Even if defendants have standing to challenge the Institutional Sexual Assault Statute, there is no constitutionally protected First Amendment. Defendants argue that somehow this statute violates the right of assembly as contained in the First Amendment to the United States Constitution. Yet the defendants’ conduct does not invoke a constitutionally protected First Amendment right. The conduct which is prohibited and covered by the statute is not constitutionally protected. The right of assembly does not protect an employee or person charged with the supervision of an inmate to engage in sexual relations or vice versa. Further, there is no case holding that an inmate is deprived of any constitutional right even when he or she is deprived of conjugal visits.

A statute is overbroad if by its reach it punishes constitutionally protected activity as well as illegal activity. The court must determine whether the enactment reaches a substantial amount of constitutionally protected conduct. Commonwealth v. Hendrickson, supra. In this case, the statute does not embrace any constitutionally protected activity. The United States Supreme Court has held that it is the burden of the person whose conduct is legitimately proscribable, and who seeks to invalidate the entire law because of its application to someone else, to demonstrate from the text of the law and from actual fact that substantial overbreadth exists. Massachusetts v. Oaks, 491 U.S. 576, 109 S.Ct. 2633 (1989).

The Pennsylvania Supreme Court held that a statute is overbroad only if by its reach it proscribes a substantial amount of constitutionally protected conduct. If the over-breadth of the statute is substantial, judged in relation to its legitimate sweep, it may not be enforced against anyone until it is narrowed to reach only unprotected activity. Commonwealth v. Hendrickson, 555 Pa. 277, 724 A.2d 315 (1999). The function of overbreadth adjudication attenuates as the prohibited behavior moves from pure speech towards conduct where this conduct falls within the scope of otherwise valid criminal laws that reflect legitimate state interests. Commonwealth v. Hendrickson, supra at 540-41, 684 A.2d at 174.

Defendants argue that in some situations an inmate and a correction officer may be married or in some other relationship that may somehow be constitutionally protected in terms of their engaging in sexual conduct. It is true that the First Amendment constitutionally protects such relationships as husband and wife and the privacy of family. Poe v. Gerstein, 517 F.2d 787 (1975), affirmed, 428 U.S. 901, 96 S.Ct. 3202 (1976). This statute is not being applied in constitutionally protected relationships. The overbreadth doctrine requires a possible substantial infringement of a protected constitutional right, not a fanciful or insignificant possibility of infringement of a hypothetical person’s rights.

Accordingly, Pennsylvania’s Institutional Sexual Assault Statute is not unconstitutionally vague or overbroad.

ORDER

And now, January 8, 2002, following argument and upon consideration of briefs, it is hereby ordered and decreed that defendants’ motion to quash the information and dismiss the charges is denied.

It is further ordered and decreed that the Institutional Sexual Assault Statute is constitutional.

      . The Due Process Clause of the United States Constitution states: “No state shall . . . deprive any person of life, liberty, or property without due process of law.” Article 1 Section 1 of the Pennsylvania Constitution states in part: “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation and of pursuing their own happiness.” Article 1 Section 9 of the Pennsylvania Constitution provides: “Nor can an accused be deprived of his life, liberty, or property unless by the judgment of his peers or the law of the land.”

      . See also, Commonwealth v. Chiappini, 566 Pa. 507, 782 A.2d 490 (2001), which held that home confinement in an electronic monitoring program can constitute “custody.” Custody was not limited to imprisonment alone.


author: WALLACH MILLER, J.,

text:
    In re Estate of McNeil
    C.P. of Monroe County,
    no. 7415 Civil 2001.

      Lorrie E. Whitfield, for petitioner.

      Timothy B. Fisher, for respondent.
    November 30, 2001
   WALLACH MILLER, J.,

This matter comes before the court as a result of a petition for declaratory relief filed in accordance with 23 Pa.C.S. §1103, to determine the marital status of the decedent and Sonia Rodriguez. The petitioner, Sonia Rodriguez, alleges the existence of common-law marriage. The decedent’s daughter, Kim Sherry McNeil, is contesting the petition. A hearing was held before this court on November 2, 2001 at which time Ms. Rodriguez testified and presented four other witnesses. Kim Sherry McNeil testified and the decedent’s brother Joseph McNeil also offered testimony to refute Ms. Rodriguez’ petition. Following the filing of briefs by both parties and independent research by the court, we are ready to dispose of this matter.

From 1980 to 1987, Walter Arthur McNeil, the decedent, was married to Charlene McNeil, and they lived in New York City. A daughter, Kim Sherry McNeil, was bom from this marriage. In 1985, the decedent began a relationship with Sonia Rodriguez, our petitioner. The decedent and petitioner lived together in New York City though decedent was still married to Charlene McNeil. On August 10, 1986, a son, Walter Arthur McNeil Jr., was bom to Ms. Rodriguez and Mr. McNeil. In August of 1988, the decedent and his wife divorced. In 1996, the petitioner, the decedent and their son moved to Pennsylvania. Although decedent was free to legally solemnize his relationship with petitioner following his divorce, the couple never formally married. On September 11, 2001, Walter Arthur McNeil died intestate after terrorists attacked the World Trade Center in New York City. In order for Ms. Rodriguez to obtain a death certificate for Mr. McNeil in the State of New York, it is necessary that she be legally declared his wife or next of kin.

Petitioner, Sonia Rodriguez, claims that she is the common-law wife of the decedent. Specifically, Ms. Rodriguez maintains that she and the decedent: (1) cohabited and agreed to live as husband and wife in 1985 in New York City; (2) had a child together; (3) moved to Pennsylvania and continued to express their relationship as husband and wife; (4) purchased property together on May 1, 2001; and (5) were recognized as husband and wife among their neighbors and co-workers. Thus, Ms. Rodriguez requests this court to declare her the common-law wife of the decedent so that she may obtain a death certificate for him and collect benefits on her own behalf and also on behalf of their minor son.

Respondent, Kim McNeil, who is the daughter of the decedent and Charlene McNeil Benton, contends that the petitioner is not the common-law wife of her father. The respondent first argues that the decedent and the petitioner never agreed to establish a relationship as husband and wife after the decedent’s divorce from her mother. Next, the respondent claims that the decedent never held himself out as the petitioner’s husband. Last, the respondent asserts that the decedent and the petitioner did not intend to live as husband and wife. In fact, respondent argues that in 1996 the decedent moved to Pennsylvania only with his son so that the child could have a better life. The respondent acknowledges that the petitioner resided at the decedent’s home in East Stroudsburg, Pennsylvania for a period of about three years. However, the respondent argues that the decedent asked petitioner to leave his home in 1999 and from that time until the decedent’s death the petitioner lived with her daughter, Taisha Hendricks, at an apartment in East Stroudsburg. Therefore, respondent requests this court to dismiss Sonia Rodriguez’ petition. Respondent has applied to the State of New York requesting a death certificate for her father, and the application lists herself and her half-brother, Walter Arthur McNeil Jr., as equal beneficiaries.

Under the laws of Pennsylvania, a marriage is a civil contract by which a man and a woman agree to take each other as husband and wife. Staudenmayer v. Staudenmayer, 552 Pa. 253, 261, 714 A.2d 1016, 1019 (1998). Pennsylvania recognizes two kinds of marriage: one, ceremonial and the other, common-law. A ceremonial marriage is a wedding or marriage performed by a religious or civil authority with the customary ceremony or formalities. Id. A common-law marriage is a marriage by the express agreement of the parties without ceremony, and generally without a witness, by words not in futuro (in the future tense) or in postea (in the past tense) but in praesenti (in the present tense), uttered with a view and for the purpose of establishing the relationship of husband and wife. Id. at 262, 714 A.2d at 1020. A common-law marriage can only be created by an exchange of words in the present tense spoken with the specific purpose that the legal relationship of husband and wife be created. Id. No specific form of words is required. Id. All that is essential is proof of an agreement to enter into the legal relationship of marriage at the present time. Id.

Common-law marriages are a fruitful source of perjury and fraud. Wagner Estate, 398 Pa. 531, 533, 159 A.2d 495, 497 (1960). Consequently, they are to be tolerated, but not encouraged. Id. A purported contract of common-law marriage is examined with great scrutiny, and, in order to overcome such scrutiny must plainly establish that there was an actual agreement entered into to form the legal relation of husband and wife. Nikitka’s Estate, 346 Pa. 63, 65, 29 A.2d 521, 523 (1943). This is especially true where one of the parties to the professed contract is dead. Id.

A purported spouse may prove the existence of a common-law marriage by eyewitness testimony, including the testimony of either of the parties to the contract, if competent and admissions by a party, either by words or acts which would raise an implication of marriage. McGrath’s Estate, 319 Pa. 309, 314, 179 A. 599, 602 (1935). Additional evidence which may be submitted for or against the existence of a common-law marriage includes: (1) the execution of deeds as husband and wife, Thewlis’s Estate, 217 Pa. 207, 310, 66 A. 519, 520 (1907); (2) the establishment of joint bank accounts, In re Cummings Estate, 330 Pa. Super. 255, 262, 479 A.2d 537, 541 (1984); (3) the woman’s use of the man’s surname, id.; (4) the parties’ filing status on tax returns, In re Estate of Rees, 331 Pa. Super. 225, 230 n.2.480 A.2d 327, 329 n.2 (1984); (5) the wearing of wedding rings, In re Estate of Garges, 474 Pa. 237, 243, 378 A.2d 307, 310 (1977); (6) taking out of life insurance naming each other as spouse, id.; (7) registering at a hotel as husband and wife, Wagner Estate, 398 Pa. at 534, 159 A.2d at 496; and (8) introducing one another as husband and wife, McGrath’s Estate, 319 Pa at 317, 179 A.2d at 603. Essentially, the test is a practical one requiring as much corroborative documentation and evidence as possible.

Where there is no testimony regarding the exchange of words in the present tense, Pennsylvania law applies a rebuttable presumption in favor of a common-law marriage based on proof of constant cohabitation and a broad general reputation of marriage. Manfredi Estate, 399 Pa. 285, 291, 159 A.2d 697, 700 (1960). Constant cohabitation even when conjoined with general reputation are not marriage, they merely give rise to a rebuttable presumption of marriage. Staudenmayer, 552 Pa. at 263, 714 A.2d at 1021. This presumption in favor of common-law marriage is one of necessity and applies only in cases where other proof is not available and the parties are otherwise disabled from testifying regarding verba in praesenti. Id. The presumption of marriage from cohabitation and reputation may always be rebutted, and is unavailable where there is proof that no marriage in fact had taken place. Nikitka’s Estate, 346 Pa. at 65, 29 A.2d at 522.

Where a party claiming a common-law marriage is available to testify regarding verba in praesenti, the burden rests with that party to produce clear and convincing evidence of the exchange of words in the present tense spoken for the purpose of establishing the relationship of husband and wife. Staudenmayer, 552 Pa. at 263, 714 A.2d at 1021. An alleged spouse who is able to testify and fails to prove, by clear and convincing evidence, the establishment of a marriage contract through the exchange of verba in praesenti, does not enjoy any presumption based on evidence of constant cohabitation and reputation of marriage. Id. Hence, the rebuttable presumption in favor of a common-law marriage disappears in the face of proof that no marriage had in fact taken place. Id.

In the present case, Sonia Rodriguez testified that no ceremonial marriage was ever performed to solemnize her relationship with the decedent. She asserts, however, that there is evidence on record from which the fact of marriage might properly be inferred. Unfortunately, Ms. Rodriguez was unable to offer any testimony in support of her contention that she and the decedent had a common-law marriage. She offered no evidence as to an exchange of words between herself and the decedent indicating their intent to enter into the legal relationship of husband and wife. To the contrary, substantial evidence indicates that the parties were not in fact married. The petitioner does not use the decedent’s surname. The petitioner and the decedent hold separate bank accounts and file separate, individual income tax returns. The petitioner’s driver’s license identifies her as Sonia Rodriguez. There is no evidence that the parties wore wedding rings. There were no deeds executed by the petitioner and the decedent as husband and wife. To the contrary, the 1996 deed to the decedent’s Pennsylvania residence names the decedent as the sole grantee of the property and refers to him as a “single individual.” Also, the deed to a timeshare villa, which is dated May 1,2000, was conveyed to “Walter A. McNeil and Sonia Rodriguez, single.” Moreover, on cross-examination, the petitioner testified the reason for this designation is because she and the decedent were not married as of May 1,2000, although they were planning to marry. (N.T. p. 20, 11. 17-24.) No additional evidence was offered following this admission regarding a present exchange of words between the petitioner and the decedent demonstrating their intent to enter the relationship of husband and wife after May 1, 2000 and before the decedent’s death.

We further find that Ms. Rodriguez is not entitled to any rebuttable presumption in favor of a common-law marriage based upon evidence of constant cohabitation and reputation of marriage. Ms. Rodriguez was available to testify to the precise form of the alleged marriage contract between her and the decedent but failed to do so. Hence, it may be properly assumed that no contract was in fact entered into. As we have previously stated, where the purported spouse herself fails to offer evidence that a valid contract was actually entered into, evidence as to cohabitation and reputation is of no value. Cohabitation and reputation are not marriage. Instead, they are but circumstances from which marriage may be presumed, and such presumption is unavailable in the absence of proof that a marriage in fact had taken place.

Despite the effect of Ms. Rodriguez’ failure to testify as to the terms of the alleged marriage contract, and entirely apart from her own admissions, we must reject her claim on another ground. Cohabitation and reputation are only presumptive proofs, and where either of these grounds fails, our courts have not allowed the presumption of marriage to be built upon the other. Nikitka’s Estate, 346 Pa. at 66, 29 A.2d at 523. Here, there is evidence of cohabitation over a period of years, but the evidence as to reputation, consisting solely of the testimony of the petitioner’s close friends and neighbors is wholly inadequate. The mere fact that Ms. Rodriguez and the decedent were presumed to be man and wife to three friends and neighbors does not establish a contract of marriage. Proof of reputation must be general and not confined to a few persons, as the relationship may be established for the purpose of deceiving others. Moreover, the testimony of these witnesses was sharply contradicted by decedent’s daughter and brother, who each testified that Ms. Rodriguez was never introduced as the decedent’s wife and was known to his family only as the mother of his son. We find that this contradiction alone is legally sufficient to disallow the presumption of marriage.

Upon considering the evidence presented by the petitioner in light of the very heavy burden Pennsylvania law imposes on one claiming a common-law marriage, we are constrained to find that no common-law marriage was ever contracted between Sonia Rodriguez and the decedent, Walter Arthur McNeil.

This case requires further comment. Pennsylvania is one of the few states that still recognizes common-law marriage. New York abolished it in 1933. Over our 10 years on the bench, we have presided over nearly a dozen cases where common-law marriage was an issue. The misinformation among the general public and even among some members of the legal community about the requirements for proving a common-law marriage is rampant. The harm that is inflicted, mostly upon uninformed women, is serious. We would urge the legislature in Pennsylvania to follow the lead of other states and abolish this concept to protect all of its citizens.

ORDER

And now, November 30, 2001, petitioner, Sonia Rodriguez’, petition for declaratory relief is dismissed.