Lead Opinion
OPINION OF THE COURT
The question presented in this case is whether there is a right to a jury trial in a bad faith action pursuant to 42 Pa.C.S. § 8371. We hold that there is not.
In the first of these consolidated cases, Appellant Edward Mishoe suffered permanent injuries in an automobile collision in Lebanon County, Pennsylvania. Mishoe recovered the maximum amount of coverage available to him under the other driver’s insurance policy, and then requested $600,000.00 in underinsured motorist benefits from his own insurer, Appellee Erie Insurance Company (“Erie”). Erie first offered to settle the matter for $75,000.00 and later increased its offer to $125,000.00. Dissatisfied with both of these offers, Mishoe invoked the arbitration provision in the insurance policy. The arbitrators awarded Mishoe $1,185,000.00, or about nine times the amount of Erie’s highest offer. Consequently, Mishoe sued Erie in the Court of Common Pleas of Lebanon County, claiming that Erie had acted in bad faith pursuant to 42 Pa.C.S. § 8371. Mishoe demanded a jury trial, but the trial court struck the jury demand.
In the second case, Appellant Nancy L. Hamer was injured in an automobile collision in Blair County, Pennsylvania. Af
On appeal, the Superior Court consolidated the two cases, reversed the trial court orders refusing the jury demands, and remanded the cases for jury trials. Erie and Kemper filed a petition for allowance of appeal and, in a per curiam order, we remanded the matter to the Superior Court for reconsideration in light of our decision in Wertz v. Chapman Township,
Section 8371 of the Judicial Code provides as- follows:
§ 8371. Actions on insurance policies
In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the insurer.
With respect to Mishoe and Hamer’s statutory argument, we note that our role in statutory interpretation matters is to give effect to the intent of the General Assembly.
If the court finds the respondent has engaged in such discriminatory practices charged in the complaint, the court shall enjoin the respondent from engaging in such unlawful discriminatory practice and order affirmative action which may include, but is not limited to, reinstatement or hiring of employes, granting of back pay, or any other legal or equitable relief as the court deems appropriate....
Id. at 1274 (quoting 43 P.S. § 962(c)(3)). In arriving at our conclusion that the foregoing language does not provide for the right to a jury trial, we relied on three criteria. First, we put substantial emphasis on the fact that the PHRA was silent regarding the right to a jury trial. See id. As we explained, “the General Assembly is well aware of its ability to grant a jury trial in its legislative pronouncements,” and therefore, “we can presume that the General Assembly’s express granting of trial by jury in some enactments means that it did not intend to permit for a jury trial under the PHRA.” Id.; cf. Hoy v. Angelone,
Significantly, in section 8371, as in the PHRA, the General Assembly is silent regarding the right to a jury trial. See id. at 1274. In addition, the legislature chose to use the term “court” in section 8371, rather than “jury.” See id.
Mishoe and Hamer argue, however, that this case is different from Wertz because, unlike the PHRA, section 8371 is subject to the Judicial Code’s definitions section, which states that “court” “[ijncludes any one or more of the judges of the court who are authorized by general rule or rule of court, or by law or usage, to exercise the powers of the court in the name of the court.” 42 Pa.C.S. § 102 (emphasis added). According to Mishoe and Hamer, this inclusive definition is broad enough to include juries because the word “includes” is open-ended, suggesting that meanings other than those specified are also valid. Additionally, they contend that it is illogical to read “court” to mean only “judge” because the Judicial Code separately defines “court” and “judge” and thus
Although Mishoe and Hamer correctly note that the definition of “court” does not specifically exclude other meanings of that term, their conclusion that the definition therefore necessarily includes “jury” is flawed. As an initial matter, Mishoe and Hamer fail to recognize that the word “includes” can signal the beginning of a complete list. See American Heritage Dictionary 665 (1969) (explaining that “includes,” like “comprise,” can imply that all of the components are stated). Moreover, the fact that the definition of “court” is dedicated to a discussion of the power of judges strongly suggests that “court” is a concept that is meant to be limited to judges. See Ken R. ex rel. C.R. v. Arthur Z.,
Mishoe and Hamer also contend that section 8371 affords the right to a jury trial because it permits an award of punitive damages, which is traditionally within the domain of the jury. We disagree. Although juries have traditionally awarded punitive damages, we cannot rest the right to a jury trial on tradition alone where the General Assembly has not referenced that tradition in section 8371 and the section’s legislative history in no way signals an intent to adhere to such tradition.
*280 The great purpose of the constitution in providing that “trial by jury shall be as heretofore, and the right[] thereof remain inviolate,” was not to contract the power to furnish modes of civil procedure in courts of justice, but to secure the right of trial by jury in its accustomed form before rights of person or property shall be finally decided. Hence the right of trial as it then existed was secured, and the trial itself protected from innovations which might destroy its utility and its security as a palladium of the liberties of the citizen. But beyond this point there is no limitation upon legislative power in constructing modes of redress for civil wrongs, and regulating their provisions.
Haines v. Levin,
In 1981, this Court considered whether there was a common law tort cause of action for bad faith on the part of an insurer and concluded that there was not. See generally D’Ambrosio v. Pennsylvania Nat’l Mut. Cas. Ins. Co.,
Mishoe and Hamer argue to the contrary that section 8371 merely codified the common law right of an insured to enforce an insurer’s contractual obligations and that the section simply adds remedies for an insurer’s breach of the contractual duty
The order of the Superior Court is affirmed.
Notes
. We also note that, in general, we will not reach a constitutional issue where it is possible to decide the matter on a non-constitutional basis. See PJ.S. v. Pennsylvania State Ethics Comm'n,
. As the statute is clear, we will not resort to the other statutory construction factors delineated by the General Assembly in 1 Pa.C.S. § 1921(c). See 1 Pa.C.S. § 1921(b) (if a statute is "clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit”).
. We note our disapproval of certain dicta contained in a footnote in the Superior Court’s decision in The Birth Center v. The St. Paul Companies,
. For purposes of the Judicial Code, 'judge” "[¡Includes a justice of the Supreme Court. Except with respect to the power to select a president or administrative judge, to appoint and remove the administrative staff of the court and to adopt rules of court and other similar matters, the term includes a senior judge.” 42 Pa.C.S. § 102.
. See, e.g., 42 Pa.C.S. § 5327(c) ("The court, not jury, shall determine the law of any governmental unit outside this Commonwealth.”); 42 Pa.C.S. § 6107(c) (“The construction of such ordinances shall be made by the court and not by the jury and shall be reviewable.”); 42 Pa.C.S. § 6111(c) (“It shall be competent for experts in formulating their
. Interestingly, the rationale employed in Younis Bros, was explicitly adopted by the Commonwealth Court in its decision in Wertz, which this Court later affirmed. See Wertz v. Chapman Township,
. The term "court” is generally used in the Code on occasions where it would be inappropriate for' the General Assembly to use the term "judge,” as in such instances the judicial action contemplated is only possible "in the name of the court.” 42 Pa.C.S. § 102; see examples cited supra note 5. On the other hand, the term "judge” is typically used in references to judges in an individual sense. See, e.g., 42 Pa.C.S.
. We also note that if we were to accept Mishoe and Hamer’s "tradition” argument, we would be compelled to construe section 8371 as requiring some remedies to be awarded by a judge and others by a jury. This is because the first and third remedies provided by the statute, interest and costs and fees, see 42 Pa.C.S. § 8371(1) and (3), are traditionally awarded by a judge, while the second remedy, punitive damages, see 42 Pa.C.S. § 8371(2), is traditionally awarded by a jury. Thus, Mishoe and Hamer’s approach would create two simultaneous meanings for the term "court” within section 8371. Specifically, “court” would mean "judge” regarding the first and third remedies, but “court” would mean "jury” with regard to the second remedy. There is nothing in the text or history of section 8371, however, that supports the notion that the legislature intended to use "court” as some sort of verbal chameleon. Cf. Younis Bros.,
. We summarily dismiss Mishoe and Hamer’s claim that we should construe section 8371 as providing for the right to a jury trial to maintain consistency between state and federal forums, see, e.g., Fahy,
. This provision has remained essentially unchanged since the Constitution of 1790 was adopted. See Wertz,
. Proper characterization, of section 8371 claims is a matter that is unsettled. See Birth Ctr. v. St. Paul Cos.,
Concurrence Opinion
concurring.
I join the Majority Opinion. I write separately only to note that I was the lone dissenter to our decision in Wertz v. Chapman Township, 559 Pa. 630,
Returning to the question of statutory construction, I believe that declining to follow Wertz here would work a greater mischief than attempting to distinguish it. In this regard, I note that the Wertz opinion itself recognized that, if the statutory construction approach adopted there was a mistaken assessment of legislative intent, the General Assembly is in a position to remedy the matter:
Based upon the legislature’s silence on the issue of the availability of a jury trial, together with the affirmative use of the term “court,” and the lack of any legislative history to the contrary, we conclude that the General Assembly did not intend for a plaintiff to have a right to trial by jury for claims under the PHRA [Pennsylvania Human Relations Act]. Of course, we recognize the difficulty in ascertaining the General Assembly’s intent where the statute provides no express answer. However, we are secure in the knowledge that if we are mistaken as to the legislature’s intent, the General Assembly may simply amend the PHRA to realize any heretofore unstated legal right that it contemplated.
Finally, in this instance at least, I am satisfied that my disagreement ab initio with the precedent at issue is an insufficient ground upon which to depart from it. Although I ultimately did not agree with the Wertz analysis of the statutory construction issue, I deemed that issue to be a close one, upon which reasonable minds might disagree. Indeed, the bulk of my dissent in Wertz was devoted to the state constitutional implications of the majority decision. Whether Wertz was right or wrong on the statutory construction question, I think it is important that our approach to these matters be consistent. Accordingly, and because I believe that the Majority Opinion carefully and faithfully applies the teaching of Wertz and, in so doing, provides both reinforcement and
Dissenting Opinion
dissenting.
The majority concludes that there is no statutory right for a plaintiff to obtain a trial by jury in an action against an insurer for bad faith brought pursuant to 42 Pa.C.S. § 8371. In reaching its' conclusion, the majority errs in three fundamental and far-reaching respects.
First, the majority mistakenly believes that our decision in Wertz v. Chapman Township,
Second, and related thereto, the majority’s analysis fails to give full effect to the construct set forth in the Statutory Construction Act.
Finally, and most importantly,, the conclusion reached by the majority, that it is for a judge, and not a jury, to award punitive damages under section 8371, is sharply at odds with the intent of the Legislature. Simply stated, one hundred and fifty years of law establishes that the award of punitive damages is entrusted to a jury. The majority ignores this elephant in the room and instead, comes to the novel and
In Wertz, our court employed a limited statutory construction analysis when faced with the issue of whether a plaintiff was afforded a right to a jury trial under the Pennsylvania Human Relations Act. 43 P.S. §§ 951-962.2. Our court first noted that the statute was silent as to whether or not a jury trial was available in an action brought under the statute and that the General Assembly was able to expressly provide for the right to a jury trial. Wertz,
The majority, by finding Wertz to be dispositive with respect to section 8371, misunderstands the import of that case. While the considerations utilized in Wertz were based upon the rules of statutory construction set forth in the Statutory Construction Act, they were a truncated version of the factors set forth in that Act. It was never the intent that the analysis used in Wertz be applied to all statutes or to broadly replace the rules of statutory construction, which must be utilized when interpreting a statutory provision.
Contrary to the majority’s approach, the full and proper framework in which to analyze the issue of a statutory right to a jury trial is set forth in the Statutory Construction Act. Proper application of the roadmap set forth in the rules of statutory construction leads to the conclusion that the Legislature intended for a right to a trial by jury in a claim brought under section 8371.
The polestar of statutory construction is to determine the intent of the Legislature. 1 Pa.C.S. § 1921(a)(court’s sole objective in construing or interpreting a statute remains to “ascertain and effectuate the intention of the General Assembly”). The right to a jury trial may be expressly set forth in a statute, or it may be implied. Commonwealth v. One 1984 Z-28 Camaro Coupe,
Section 8371 was enacted into law as part of the Act of February 7,1990, P.L. 11, No. 6, § 3, effective July 1,1990, as a general amendatory act to the Judicial Code. Section 8371 provides:
In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the insurer.
42 Pa.C.S. § 8371.
It is apparent that section 8371 neither expressly provides for, nor prohibits, a jury trial in an action brought under this section. Thus, it becomes incumbent to consider whether the statute impliedly provides for a jury trial.
As noted above, the rules of statutory construction set forth that when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). Only if the words of the statute are found not to be explicit, i.e., to be unclear or ambiguous, should a reviewing court further engage in an attempt to ascertain the intent of the Legislature through use of the various tools provided in the Statutory Construction Act.
Section 8371 utilizes the term “court” to describe the body that determines whether an insurer acted in bad faith and with respect to possible actions to be taken if such a finding is made. Applying the above-stated concepts, it becomes clear that the term “court,” as used in this statute is not explicit, but is ambiguous and is not reasonably capable of a single construction or being understood in only one sense.
Specifically, section 102 of the Judicial Code provides definitions for usage in the sections found in the Code, including section 8371. The definition ascribed by the Legislature to the term “court” in section 102 is broad and inclusive:
“Court.” Includes any one or more of the judges of the court who are authorized by general rule or rule of court, or by law or usage, to exercise the powers of the court in the name of the court.
42 Pa.C.S. § 102.
The Judicial Code also contains a distinct statutory definition for the term “judge”:
“Judge.” Includes a justice of the Supreme Court. Except with respect to the power to select a president or administrative judge, to appoint and remove the administrative staff of the court and to adopt rules of court and other similar matters, the term includes a senior judge.
Id.
The above provisions make clear that the definition given by the Legislature to the term “court” begins by use of the nonexclusive verbiage, “[i]ncludes,” which suggests that while including a judge or judges, more is contemplated by the definition. Moreover, the definition section of the Judicial Code contains separate and specific definitions for the words “court” and “judge.” As defined, the two terms are not equivalent, and implies that “court” means something in addition to “judge.” Finally, supporting the proposition that the term “court” is capable of more than a single construction is
Further confirming the existence of an ambiguity is that in other statutes, the Legislature itself has considered the term “court” to encompass the concept of a jury and has expressly carved out the concept of jury from the meaning of the term “court.” See, e.g., 42 Pa.C.S. § 6336 (“Hearings under this chapter [of the Juvenile Act] shall be conducted by the court without a jury.... ” (emphasis supplied)); 23 Pa.C.S. § 1308(b)(“The application for a marriage license shall be . heard by a judge of the court, without a jury, in court or in chambers at the earliest possible time.” (emphasis supplied)).
Additionally, case law supports more than one construction or understanding of the meaning of the term “court.” As far back as the beginning of the last century, courts of this Commonwealth have not considered the term “court” to be exclusively coextensive with the term “judge.” See, e.g., Commonwealth ex. rel. The Attorney General v. Mathues,
Finally, other authority similarly ascribes a more inclusive meaning to the term “court.” The American Heritage Dictionary of the English Language (4th ed.2000) offers the definition of “court” as, “A person or body of persons whose task is to hear and submit a decision on cases at law.” Significantly, even United States Supreme Court Justice Antonin Scalia, a strict textualist, finds that the term “court” can include both
Given the differing meanings ascribed to the term, one simply cannot reasonably say that the term “court,” as contained in the Judicial Code, is free from all ambiguity and is subject to only one construction or understanding. 1 Pa.C.S. § 1921(b), (c)(emphasis supplied); O’Rourke v. Commonwealth,
Rather than acknowledge the ambiguity in the term “court” in this statute and then turn to the other tools of statutory construction set forth in section 1921(c) of the Statutory Construction Act to avoid the ambiguity, the majority commits a second fundamental error by refuting these other reasonable meanings ascribed to the term “court” and simply offering its definition of the term “court.”
Having determined that the term “court” is not explicit, the next step is to turn to the considerations set forth in the Statutory Construction Act to be utilized when the terms of a statute are not clear and free from all ambiguity. 1 Pa.C.S.
The occasion and necessity for the statute, the mischief to be remedied, and the object to be obtained are all matters to be considered to ascertain the intent of the General Assembly. 1 Pa.C.S. § 1921(c)(1), (3), (4). By failing to take into account these considerations, the majority commits its third fundamental error.
When it enacted section 8371, the Legislature provided the primary remedy of punitive damages to punish insurers that engaged in bad faith. Punitive damages are a legal remedy and have traditionally been awarded by juries in courts of law. Curtis v. Loether,
The tradition of the award of punitive damages being within the province of the jury is unmistakable evidence that the Legislature intended to permit a jury to determine bad faith and to award punitive damages in an action brought pursuant to section 8371. See 1 Pa.C.S. § 1921(c)(5)(General Assembly presumed to know the existing law when enacting a statute). Strikingly, the majority fails to offer a single case in which the award of punitive damages was for a judge in the first instance. The majority’s assertion that a judge may award punitive damages if a jury trial is waived is a weak reed by which to refute this overwhelming evidence of the Legislature’s intent. Of course, a party may waive its right to a jury trial, but this does not logically support the proposition that there is no right to a jury trial in the first instance—in fact, it suggests just the opposite. Yet, even assuming that the award of punitive damages is in some unique instance awarded by a judge rather than a jury, the clear implication of this tradition of a jury determining punitive damages in attempting to ascertain the intent of the General Assembly simply cannot and should not be ignored. It is this departure from longstanding law that exposes most clearly the flaw in the majori
In conclusion, the majority errs in limiting its analysis regarding section 8371 to those factors expressed in Wertz. Rather, it is full utilization of the framework set forth in the Statutory Construction Act that is appropriate. Employing this construct, it becomes evident that the term “court” is not explicit and unambiguous. Applying the tools of statutory construction, and recognizing the longstanding legal tradition of a jury awarding punitive damages, it becomes an inescapable conclusion that the Legislature intended that a jury be permitted to determine the issue of bad faith and punitive damages.
Thus, I would reverse the judgment of the Superior Court and remand the matter for further proceedings.
. Statutory Construction Act of 1972 (“Statutory Construction Act”), 1 Pa.C.S. § 1501 et seq.
. Finding that there existed no cause of action for discrimination at the time the Pennsylvania Constitution was adopted, we also concluded that the Pennsylvania Constitution did not guarantee a plaintiff a right to a jury trial in an action brought under the Pennsylvania Pluman Relations Act. Id. at 1276-77.
. 1 Pa.C.S. § 1901 ("In the construction of the statutes of this Commonwealth, the rules set forth in this chapter shall be observed, unless
. 1 Pa.C.S. § 1921(c)("When the words of a statute are not explicit, the intention of the General Assembly may be ascertained by considering, [listing various matters].”); Ramich v. WCAB (Schatz Electric, Inc.), 564 Pa.656,
. See Antonin Scalia, A Matter of Interpretation (Amy Gutmann ed„ 1997).
. Indeed, the majority's approach sharpens the point. The majority recognizes that the statute in defining the term "court'' utilizes the definitional language "includes any one or more judges ” Maj. Opin. at 1156-57. The majority offers that the word " ‘includes’ can signal the beginning of a complete list.” (emphasis applied). Maj. Opin. at 1157. Yet, this only supports the conclusion that the term is ambiguous.
. Statutory construction considerations include:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be obtained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
1 Pa.C.S. § 1921 (c)(l)-(8).
. The circumstances under which a statute was enacted and legislative history are sometimes used to ascertain the intent of the General Assembly. 1 Pa.C.S. § 1921(c)(2), (7). Yet, the parties have not offered, and I have not found, any legislative history that would shed light on the availability of a jury trial in an action brought pursuant to section 8371 or evidence of the circumstances surrounding the enactment of section 8371. Therefore, the absence of relevant background as to the passing of section 8371 fails to advance the analysis. Moreover, there is a lack of former law and legislative and administrative interpretations of section 8371. 1 Pa.C.S. § 1921(c)(5), (8). Thus, these factors do not aid in the determination of the issue before us.
. Finally, while the parties have weighed in on the significance of the General Assembly’s providing for the award of punitive damages, as it relates to the right to a jury trial, neither party has in a meaningful fashion addressed the effect of section 8371’s provision for interest and/or court costs and attorney fees against the insurer. Consistent with the recognition that the term "court” as used in section 8371 is capable of meaning judge or judge and jury, and becatxse a judge has traditionally awarded interest, costs, and fees, Bata v. Central-Penn National Bank of Philadelphia,
. As I would conclude that there exists a statutory right to a trial by jury in a proceeding brought pursuant to section 8371, I do not reach the issue of whether there is such a right pursuant to the Pennsylvania Constitution.