Lead Opinion
OPINION BY
Sеction 8553 of what is commonly known as the Political Subdivision Tort Claims
This appeal arises out of a Complaint filed by Zauflik against District, a local agency under the Tort Clаims Act, and other defendants,
District admitted liability for Zauflik’s injuries pursuant to Section 8542(b)(1) of the Tort Claims Act.
On December 8, 2011, District’s counsel learned of the existence of a $10,000,000 excess insurance policy while attending an executive session of District’s school board and, on December 9, 2011, informed Zauf-lik’s counsel about the policy. (Letter from District’s counsel to Zauflik’s counsel, via e-mail, December 9, 2011, R.R. at 391a.) During discovery District had informed Zauflik’s counsel that it had $1,000,000 in primary insurance coverage, but did not reveal the existence of the $10,000,000 excess policy, or that it had a total of $11,000,000 in insurance coverage. District asserts that this was an inadvertent discovery violation (District’s Br. at 57), but Zauflik contends that District deliberately cоncealed the existence of the excess policy until after the jury verdict. (Zauflik’s Br. at 9.)
District and Zauflik each filed motions for post-trial relief. District requested that the trial court mold the jury verdict to $500,000 — the amount of the statutory cap. (District’s Motion for Post-Trial Relief, R.R. at 72a-113a.) Zauflik opposed District’s motion to mold the verdict on the grounds that the Tort Claims Act violates the Pennsylvania and United States Constitutions both facially and as applied, and filed a motion that the verdict not be molded, and judgment be entered based on the original verdict. (Zauflik’s Answer and Memorandum in Opposition to District’s Motion for Post-Trial Relief, R.R. at 463a-646a.) Zauflik filed a Motion for Delay Damages and a Motion for Sanctions pursuant to Rules 238(a)(2) and 4019 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. Nos. 238(a)(2), 4019. (Motion for Delay Damages, R.R. at 114a-26a; Motion for Sanctions, R.R. at 127a-415a.)
In the Motion for Sanctions, Zauflik requested that the trial court strike District’s reliance on the Tort Claims Act as a defense and/or limitation on damages, and sought leave to take additional discovery about the circumstances of District’s failure to disclose the excess policy, additional time to review District’s responses to this discovery, an evidentiary hearing, and an order that District produce amended, verified responses to Zauflik’s first set of interrogatories. (Motion for Sanctions at
On May 25, 2012, after briefing and oral argument on the post-trial motions, the trial court filed a Memorandum Opinion and Orders molding the jury verdict to $500,000 pursuant to the Tort Claims Act and adding delay damages to the molded verdict in the amount of $2,661.63. The Trial Court then granted Zauflik’s Motion for Sanctions against District for not disclosing the existence of the excess policy and ordered District to pay Zauflik’s counsel the amount of $5,000. (Trial Ct. Orders, May 25, 2012, R.R. at 876a-86a.) In its Memorandum Opinion, the trial court acknowledged “that the circumstances of this ease create an unfair and unjust result,” and stated that despite the existence of a total of $11,000,000 in insurance policy coverage, the statutory limitation on damages for a local agency pursuant to Section 8553(b) of the Tort Claims Act required the trial court to mold the jury verdict of $14,036,263.39 to $500,000, “effectively reducing the jury’s determination of fair and adequate compensation for the damages Zauflik suffered as a result of [District’s] negligence by ninety-six (96) percent.” (Trial Ct. Op. at 3.) The trial court stated further that it was “constrained by precedent to find [Section] 8553(b) to be constitutional,” although it expressed concern in so doing:
This Court is of the opinion that a reevaluation of the constitutionality of the statutory cap on damages on equal protection grounds is necessary. It is this Court’s belief that an individual’s right to a full compensatory recovery in a tort suit is decidedly not outweighed by the governmental interest of “preservation of the public treasury as against the possibility of unusually large recoveries in tort cases.”
(Trial Ct. Op. at 4-5 (emphasis in original).) This appeal followed.
On appeal, Zauflik argues that the Tort Claims Act’s $500,000 statutory cap on damages should be reevaluated and declared unconstitutional because it violates the following provisions of the Pennsylvania Constitution:
I. Article I, Section 11 of the Pennsylvania Constitution—
“Open Courts ”
Multiple constitutional challenges have been raised unsuccessfully against the Tort Claims Act since its enactment soon after the Pennsylvania Supreme Court’s abrogation of the common law doctrines of governmental and sovereign immunity. See Ayala v. Philadelphia Board of Public Education,
All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.
Pa. Const, art. 1, § 11. In an early constitutional challenge to the Tort Claims Act, our Supreme Court pronounced the second sentence of Article I, Section 11 to be “an integral, unequivocal and controlling portion” of this Constitutional provision, and so upheld the constitutionality of the Tort Claims Act against wrongful death and survival claims by Carroll, a plaintiff who sought recovery for the death of her son who committed suicide while in the custody of a county detention home. Carroll v. County of York,
Before Carroll was handed down, “a gas explosion in ... Philadelphia killed seven persons, injured many others, and caused extensive property damage.” Smith v. City of Philadelphia,
Zauflik contends that Smith incorrectly interpreted the second sentence of Articlе I, Section 11 because it guarantees an individual’s right to obtain full redress and full compensation. Zauflik further argues that a political subdivision is not the Commonwealth and emphasizes that the Framers were aware of political subdivisions, but did not include them in Article I, Section 11 which specifies only the “Commonwealth.” (Zauflik’s Br. at 42.) Zauflik points to Justice Larsen’s dissenting opinions in Carroll,
A political subdivision is most certainly not “the Commonwealth” and the parties do not seriously argue that the second proviso of Article I, § 11 supports the legislature’s enactment of the Act. Such an argument is quickly answered with two same-day decisions of this Court. Brown v. Commonwealth,453 Pa. 566 ,305 A.2d 868 (1973), declined to overrule the “doctrine” of sovereign immunity in the absence of legislative action waiving the Commonwealth’s immunity. Ayala v. Philadelphia Board of Public Education, supra, did not feel compelled, on the other hand, to await legislative action in order to abolish immunity’s local government counterpart. The difference between these cases, as observed by Justice Pomeroy, was the second proviso, which provided a constitutional basis for sovereign immunity but not for governmental, thus freeing the courts to act in the latter case, while restricting them in the former.
Carroll,
II. Article III, Section 18 of the Pennsylvania Constitution— “Anti-Cap ”
Zauflik next argues that the Tort Claims Act violates Article III, Section 18 of the Pennsylvania Constitution, which bars the General Assembly from capping compensatory damages unless the case involves workers’ compensation.
In Smith, our Supreme Court considered arguments that were similar, if not identical, to Zauflik’s position here. Relying upon Singer v. Sheppard,
As we previously have stated, “[e]ven if it were true that ... Smith w[as] wrongly decided, we, as an intermediate appellate court are bоund by the decisions of the Pennsylvania Supreme Court and are powerless to rule that decisions of that Court are wrongly decided and should be overturned.” Griffin v. Southeastern Pennsylvania Transportation Authority,
III. Article V, Section 1 of the Pennsylvania Constitution— “Separation of Powers ”
Zauflik contends that the statutory cap of the Tort Claims Act constitutes a legislative invasion of the judicial power of the Commonwealth that is vested in a unified judicial system. Because the judicial power inherently encompasses the power to remit a jury award based upon the evidence presented at trial, capping damages as a matter of law on grounds wholly unrelated to the record evidence is, Zauflik argues, a legislative invasion of the judiciary’s power of remittitur. Therefore, permitting the General Assembly to place a statutory cap on a jury award of damages violates basic principles of the separation of powers doctrine, which “ ‘is not merely a matter of convenience or of governmental mechanism ... [but] preclude^] a commingling of these essentially different powers of government in the same hands.’ ” Stilp v. Commonwealth,
Article V, Section 1 of the Pennsylvania Constitution provides:
The judicial power of the Commonwealth shall be vested in a unified judicial system consisting of the Suprеme Court, the Superior Court, the Commonwealth Court, courts of common pleas, community courts, municipal and traffic courts in the City of Philadelphia, such other courts as may be provided by law and justices of the peace. All courts and justices of the peace and their jurisdiction shall be in this unified judicial system.
Pa. Const, art. V, § 1. This Court has stated that “our courts have integrated to some extent the separation of powers doctrine and Article V of the Pennsylvania Constitution,” noting that “[t]he separation of powers doctrine ... stands for the proposition ‘that the executive, legislative, and judicial branches of government are equal and none should exercise powers exclusively committed to another branch.’” Seit-
In Seitzinger, a law firm filed a petition for review seeking a declaration that the fee limitation provisions in the Workers’ Compensation Act
District contends that this reasoning applies here. It appears that, in view of Article I, Section ll’s provision that “[sjuits may be brought against the Commonwealth in such manner, in such courts and in such eases as the Legislature may by law direct,” Pa. Const, art. I, § 11, and the Supreme Court’s holding in Smith that this provision specifically reserves for the General Assembly the power to enact a statutory cap on the tort liability of the Commonwealth and its subdivisions, Smith,
IV. Article L Section 6 of the Pennsylvania Constitution— “Right-to-Jury ”
Zauflik argues that the Tort Claims Act violates Article I, Section 6 of the Pennsylvania Constitution because it invades the exclusive province of the jury, “as factfin-der, to hear evidence on damages and decide what amount fairly and completely compensates the plaintiffs.” Matheny v. West Shore Country Club,
District counters that there is no question that Zauflik’s claims were, in fact, heard by a jury of her peers. District contends that the Supreme Court’s holdings, in Carroll and Smith, that the Tort Claims Act is constitutional bind this Court to these holdings “regardless of how it came to its conclusion,” citing Rendell v. Pennsylvania State Ethics Commission,
District further contends that, because the Tort Claims Act was not enacted fоr more than two hundred years after the adoption of the Pennsylvania Constitution, tort claims against governmental entities created by the Tort Claims Act did not exist at the time of the adoption of the Pennsylvania Constitution. District relies upon Smith, in which our Supreme Court stated that the Framers did not envision any suits against governmental defendants, but “were addressing themselves to private ... defendants.” Smith,
Article I, Section 6 of the Pennsylvania Constitution provides in relevant part:
Trial by jury shall be as heretofore, and the right thereof remain inviolate. The General Assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil ease. Furthermore, in criminal cases the Commonwealth shall have the same right to trial by jury as does the accused.
Pa. Const, art. 1, § 6. “On its face, Article I, Section 6 preserves the following two things: the right to trial by jury shall be as heretofore; and the right to trial by jury remains inviolate.” Blum by Blum v. Merrell Dow Pharmaceuticals, Inc.,
Zauflik focuses upon whether the fact-finding function of thе jury was usurped by the statutory cap, thereby invading the jury’s province and burdening it with onerous conditions and restrictions, citing Custren v. Harleysville Insurance Co.,
Notwithstanding Zauflik’s arguments, jury action is not without permissible limitations. The Supreme Court has held that “it is within the province of the [General Assembly] to determine that certain bars to suit are, in its judgment, needed for the operation of local government,” Carroll,
[t]he 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 by jury 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.
Id. at 280,
Based on the arguments presented,
V. Equal Protection and Due Process
We next examine Zauflik’s assertion that the statutory cap on damages of the Tort Claims Act violates the equal protection guarantees of the Pennsylvania and United States Constitutions,
The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The Equal Protection Clause of the Pennsylvania Constitution provides that “[njeither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.” Pa. Const, art. I, § 26.
A. Level of Scrutiny
In analyzing Zauflik’s equal protection challenge to the statutory cap, we must first determine the appropriate level of judicial scrutiny to be applied. Generally, to determine whether a statute creating classifications between people — in this case, the statutory cap that limits damages recovеrable by claimants injured by a governmental entity but not by private, nongovernmental entities — is justified, there must be a determination of which of three types of classes is involved: (1) a suspect class or fundamental right; (2) an important or sensitive interest; or (3) none of the above. Smith,
Strict scrutiny of a legislative classification applies “only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.”
In Smith, in analyzing the claimant’s equal protection challenge to the statutory cap, the Pennsylvania Supreme Court ruled out the application of the strict scrutiny standard, stating that no fundаmental rights were implicated and “[t]he governmental interest, preservation of the public treasury as against the possibility of unusually large recoveries in tort cases, is, self-evidently, an important governmental interest.” Id. at 139,
[n]o fundamental rights are implicated because the right to a full recovery in a tort suit brought against ... political subdivisions is expressly limited by [the Supreme Court’s] interpretation of Arti-
Id. Additionally, in Lyles v. Department of Transportation,
[t]he only difference in principle between the Smith case and [Lyles ] is that [the latter] concerns a statute that limits damages which may be recovered against the Commonwealth, whereas the Smith case concerned a limitation on damages recoverable against political subdivisions of the Commonwealth. As we discussed in Smith, such a limitation of damages violates neither Article III, Section 18 of the Pennsylvania Constitution, nor the Equal Protection provisions of the federal or Pennsylvania constitutions. Since a statutory limitation on damages recoverable against political subdivisions of the Commonwealth is not unconstitutional, and since, for purposes of this case, there are no legally significant differences between a statute which limits damages recoverable against agencies оf the Commonwealth and astatute which limits damages recoverable against the Commonwealth itself!, the Supreme Court affirmed the molding of the $750,000 jury verdict to $250,-000].
Id. at 325,
Notwithstanding these precedents Zauflik, nevertheless, contends that the Supreme Court should have applied strict scrutiny because the right to obtain a full tort recovery and the right to jury trial are fundamental rights requiring a strict scrutiny analysis. Zauflik argues that the Supreme Court applied the incorrect test when it applied intermediate scrutiny and requests this Court to reconsider the test and apply strict scrutiny.
In contending that the statutory cap of the Tort Claims Act should not pass intermediate or even rational review, Zauflik relies on Ayala. However, Ayala involved the abrogation of common law immunity, which is different from the case here involving a statute that reflects a legislative policy decision. In Ayala, the Supreme Court specifically recognized that the General Assembly had the constitutional authority to limit recovery on the basis of a defendant’s status. Ayala,
B. The Classifications
Zauflik further argues that the statutory cap violates equal protection principles because it creates an impermissible classification between persons who are injured by political subdivisions and those who are not. Zauflik contends that the interest here, e.g., the protection of the public treasury against unexpected and unusually large tort recoveries, is not addressed by
In Smith, our Supreme Court was aware that “there is a $500,000 limit on recoveries in tort cases filed against political subdivisions of the Commonwealth, but there is no such limit on private parties.” Smith,
This Cоurt has, repeatedly, held that the purchasing of liability insurance did not waive, or essentially negate, the statutory cap. For example, in a case challenging a molded jury verdict where a township had purchased excess insurance coverage, this Court concluded that the reasoning applicable to the construction of Section 8553 was equally applicable to Section 8558 of the Torts Claims Act.
Regarding the issue of insurance coverage and its effect on the limitation of damages provision in [Section] 8553, this Court stresses that the plain language of the statute is clear and unambiguous and in no manner evinces a legislative intent to waive the damages limitation upon purchase of liability insurance by a local agency. The legislation was pаssed as an attempt to stabilize a political subdivision’s ability to obtain insurance coverage by defining the risks to be covered ... and legislative history demonstrates that the General Assembly was aware that municipalities were insured but nevertheless chose to limit their potential liability.
Id. (citation omitted). Additionally, “[t]his Court note[d] that the absolute defense of governmental immunity, particularly the statutory limit on damages, is nonwaivable. Nor is governmental immunity subject to any procedural device that could render a local agency liable beyond the exceptions granted by the legislature.” Dunaj v. Selective Insurance Co. of America,
C. Re-balancing the Interests
Zauflik further argues that the Tort Claims Act violates Equal Protection principles as applied to this case because District can, and actually did, insure against judgments such as Zauflik was awarded. Therefore, there is no important or even rational basis to support insu
Zauflik encourages this Court not to arrive at a decision that is born of an unyielding mold of rigidly formed concrete and emphasizes that the existence of the excess policy in this case raises additional interests among the governmental entity, the public treasury, and the injured party that have not been fully weighed in any constitutional analysis. This includes weighing whether District’s purchase of the excess policy shows that District had the capacity to reasonably protect itself from at least $11 million of the jury verdict and whether this could, to some extent, play a role in any rebalancing of the interests in this case, particularly since the Supreme Court’s rationale in Smith, upholding the statutory cap, was to protect the public treasury against unusually large tort awards. Zauflik contends that the statutory cap actually encourages a culture of complacency, which undermines the important goals of safety and accident avoidance, and that we should weigh whether the protection of the public fisc comes at the expense of the protection of public safety. There is also a question as to whether the interests may balance differently when the function being performed is not essential to the governmental agency’s purpose, as in this case of bus transportation for school students, in which the risks of motor vehicle accidents can seemingly be better insured by outsourcing that nonessential function rather than imposing the statutory cap. Finally, there is an issue as to whether the public treasury would be better served in this case, where insurance is available, to permit the motor vehicle liability insurance system to provide for Zauflik’s future and long-term health care and other services rather than relying on financial support and services from various governmental agencies.
VI. Sanction for the Discovery Violation
Zauflik also contends that the trial court erred by оnly imposing a sanction in the amount of $5,000 for District’s discovery violation involving the excess policy, when it should have struck the defense of the immunity of the Tort Claims Act altogether.
Because a trial court has discretion over whether to impose a sanction and its severity, Rohm and Haas Co. v. Lin,
Moreover, the “[djefense of governmental immunity is an absolute defense, directly analogous to our holding in workers’] compensation cases and is not waivable ... nor is it subject to any procedural device that could render a governmental agency liable beyond the exceptions granted by the legislature.” In re Upset Sale (Skibo),
Taylor and Sahutsky are inapposite. Taylor did not authorize a trial court to impose a punitive monetary sanction tantamount to striking the statutory cap of the Tort Claims Act, but entered default judgment on liability only and ordered a trial on damages. Taylor,
VII. Conclusion
As tragic as the circumstances are in this case, we are constrained by the prece-dential case law that has previously upheld the constitutionality of the statutory cap of the Tort Claims Act multiple times. It is the role of the General Assembly, not this
For the foregoing reasons, we affirm the Orders of the trial court.
Judge BROBSON did not participate in the decision in this case.
ORDER
NOW, July 3, 2013, the Orders of the Court of Common Pleas of Bucks County in the above-captioned matter are hereby
AFFIRMED.
Notes
. 42 Pa.C.S. § 8553. Section 8553 of the Tort Claims Act addresses limitations in damages, and provides, in relevant part:
(a) General rule. — Actions for which damages are limited by reference to this subchapter shall be limited as set forth in this section.
(b) Amounts recoverable. — Damages arising from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $500,000 in the aggregate.
(d) Insurance benefits. — If a claimant receives or is entitled to receive benefits under a policy of insurance other than a life insurance policy as a result of losses for which damages are recoverable under subsection (c), the amount of such benefits shall be deducted from the amount of damages which would otherwise be recoverable by such claimant.
Id.
. All defеndants other than District were dismissed with prejudice before trial by Stipulation and Order. (Stipulation of Counsel, Docket Entry, November 23, 2011, R.R. at 17a; Order Approving Stipulation of Counsel, November 29, 2011, R.R. at 67a-68a.) Other defendants included: Thomas Built Buses, Inc., Freightliner, LLC, Bendix Commercial Vehicle Systems, LLC, Williams Controls, Inc., and the school bus driver. (Complaint at 1-5, R.R. at 22a-26a.) Zauflik’s Notice to the Attorney General, as mandated by Rule 235 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 235, that she was challenging the constitutionality of the Tort Claims Act states that "[Zauflik] resolved her claims against the product manufacturers in a confidential settlement. On the eve of trial, the parties stipulated to the dismissal of Zauf-lik’s claims against the bus driver.” (Prae-cipe to File Notice to Attorney General, February 2, 2012, and Letter from Zauflik’s Counsel to Attorney General (February 1, 2012) at 1.)
.District admits that this was the cause of the accident as concluded by the Falls Township Police and the National Transportation Safety Board. (Stipulation Order at 1-2, R.R. at 67a-68a.)
. 42 Pa.C.S. § 8542(b)(1). Section 8542(b)(1) of the Tort Claims Act provides:
(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
(1) Vehicle liability. — The operation of any motor vehicle in the possession or control of the local agency, provided that the local agency shall not be liable to any plaintiff that claims liability under this subsection if the plaintiff was, during the course of the alleged negligence, in flight or fleeing apprehension or resisting arrest by a police officer or knowingly aided a group, one or more of whose members were in flight or fleeing apprehension or resisting arrest by a police officer. As used in this paragraph, "motor vehicle” means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.
Id.
. These post-trial depositions are not included in the certified record in this case.
. Mr. Leonard testified that the School Claims Service is not the insurer, but a third-party administrator that provides the administrative aspects of claims adjustment. (Leonard's Dep., March 19, 2012, at 14, R.R. at 806a.)
. This Court’s scope of review of the constitutionality of a statute is plenary. Konidaris v. Portnoff Law Associates, Ltd.,
.In Commonwealth v. Edmunds,
. Numerous amici have filed briefs in support of District in this appeal: (1) the Pennsylvania Public Transit Association, the Southeastern Pennsylvania Transportation Authority, the Port Authority of Allegheny County and the Pennsylvania Turnpike Commission; (2) the County Commissioners Association of Pennsylvania, the Pennsylvania Chamber of Business and Industry, the Pennsylvania Municipal Authorities Association, the Pennsylvania Municipal League, the Pennsylvania School Boards Association, the Pennsylvania State Association of Boroughs, the Pennsylvania State Association of Township Commissioners and the Pennsylvania State Association of Township Supervisors; (3) Delaware Valley Insurance Trust; (4) Crawford Area Transportation Authority and Indiana County Transit Authority; (5) State Association for Transit Insurance; and (6) the Philadelphia Housing Authority and the Philadelphia Housing Development Corporation.
. Carroll also challenged the constitutionality of the $500,000 statutory cap on damages of the Tort Claims Act, but the Supreme Court noted that because Carroll was not among those who can recover under any one оf the eight exceptions to governmental immunity enumerated in the Tort Claims Act, this issue was not properly before the Supreme Court. Carroll,
. Zauflik contends that liability limitations based on a state’s constitutional provisions have been rejected in other states and cites the following cases (in alphabetical order by state) as examples in her brief at page 43: Smith v. Department of Insurance,
. This is "[t]he rule of stare decisis [that] declares that for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different.” Tilghman,
. Stare decisis also applies to this Court's own decisions in which various constitutional challenges to the Tort Claims Act have been rejected, including those raised under Article I, Section 11 of the Pennsylvania Constitution. See generally Germantown Savings Bank v. City of Philadelphia, 98 Pa.CmwIth. 508,
. Article III, Seсtion 18 provides, in relevant part: "The General Assembly may enact laws requiring the payment by employers, or employers and employes jointly, of reasonable [workers’ compensation benefits]; ... but in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting in death; or for injuries to persons or property.” Pa. Const, art. Ill, § 18.
. Zauflik points out that Smith stated that Article III, Section 18 was enacted in the 1880s in order to prevent certain private parties such as railroads and other common carriers from securing a liability limitation from the General Assembly, but that the Framers were not concerned about governmental tort liability at this time. (Zauflik’s Br. at 38.)
. In considering similar constitutional challenges, including Article III, Section 18, to a now repealed version of no-fault motor vehicle insurance containing limitations on recovery by private parties, not governmental entities, the Pennsylvania Supreme Court in Singer traced the history of Article III, Section 18. Singer,
. "Except for an amendment in 1915 exempting workers’] compensation laws from the requirement that recoveries not be limited, and the renumbering of the section in 1967, [Article III,] Section 18 [, previously Section 21,] has remained unchanged.” Smith,
. Act of June 2, 1915, P.L. 736, as amended, 77P.S. §§ 1-1041.4,2501-2708.
. Article V, Section 10(c) provides in relevant part:
[t]he Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts ... and for admission to the bar and to practice law ... if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose.
Pa. Const, art. V, § 10.
.Rule 1.5(c) of the Pennsylvania Rules of Professional Conduct provides, in relevant part, that "[a] fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law.” Pa. R.P.C. 1.5(c).
. The record indicates that Zauflik also pursued claims against other tortfeasors, such as the bus manufacturer, which were not subject to the limitation of Section 8553(b). (Prae-cipe to File Notice to Attorney General, February 2, 2012, at 1; Letter from Zauflik's Counsel to Attorney General (February 1, 2012) at 1.)
. Our Supreme Court has observed that "Art. I, [S]section 6 has been construed as requiring the right to trial by jury in all matters in which the right to a jury trial has been recognized at the time of the adoption of the Constitution of 1790.” Parker v. Children’s Hospital of Philadelphia,
. Here, Zauflik does not analyze whether she had a constitutional right to a jury trial for her claims in this case or whether such a right, in fact, existed "as heretofore”' — that is, at the time of the adoption of the Pennsylvania Constitution. Based on our disposition of this issue, we need not decide this legal question.
. "The equal protection provisions of the Pennsylvania Constitution are analyzed by this Court under the same standards used by
. As stated by the dissent in Smith:
regardless of whether we employ a "strict scrutiny,” "heightened scrutiny,” or "rational basis” standard of review, the classifications created by the [Tort Claims] Act based solely on the identity and status of the tort-feasor are arbitrary, do not bear a fair and substantial relation to any legitimate state purpose, and deny to the claimants the enjoyment of their civil rights and equal protection of the laws under the state and federal constitutions.
Smith,
. The United States Supreme Court has stated that the following are fundamental rights requiring strict scrutiny analysis: Roe v. Wade,
. The United States Supreme Court has articulated the rational basis test as follows:
The standards under which this proposition is to be evaluated have been set forth many times by this Court. Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offend-cle III, Section 18 and Article I, Section 11 of the Pennsylvania Constitution (permitting the legislature to limit recovery against governmental units). ed only if the classification rests on grounds wholly irrelevant to the achievement of the Statе’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.
McGowan v. State of Maryland,
. Zauflik further argues that the Tort Claims Act violates principles of substantive due process; however, the analysis of a substantive Due Process claim is the same analysis as that performed under an Equal Protection claim. Griffin,
. James involved an equal protection challenge involving classifications of those bringing a personal injury suit against a transit authority with a requirement that notice be provided within six months of the date of injury as a prerequisite, and those who brought such suits against defendants not subject to the six-month notice provision who had two years to bring their suits. James,
Art. I, § 11 of the Pennsylvania Constitution explicitly reserves to the Commonwealth the power to determine in which cases it will be sued. This power, in turn, is derived from the Eleventh Amendment to the United States Constitution, permitting the states to exercise sovereign immunity, should they choose so to do. We conclude, therefore, that there is no "fundamental right” to sue the Commonwealth, for such right is explicitly limited by Art. I, § 11 of the Constitution of Pennsylvania.
Id. The Supreme Court determined that, in cases where the Commonwealth has consented to suit, such as this one, James’ right of access to the courts was not a fundamental right since the Commonwealth, through the General Assembly, can permit or restrict the right altogether. Therefore, this was not a fundamental right subject to strict scrutiny review, but was an important right subject to an intermediate or heightened standard of review. Id. at 147,
. 42 Pa.C.S. § 8558. Section 8558 provides for judgments against an insured local agency as follows:
If the judgment is obtained against a local agency that has procured a contract or policy of public liability insurance protection, the holder of the judgment may use the methods of collecting the judgment as are provided by the policy or contract and the laws of the Commonwealth to the extent of the limits of coverage provided.
Id.
. There are differences of opinion regarding the balancing of these interests. For example in A Theory of Governmental Damages Liability: Torts, Constitutional Torts, and Takings, 9 U. Pa. J. Const. L. 797, 798 (2007), Lawrence Rosenthal states that theories of governmental tort liability are "riddled with immunities unknown in the private sector [in] a confusing patchwork seemingly without explanation,” but
generally fall within two broad camps: the instrumentalists [who] claim that tort liability promotes efficient investments in safety by visiting financial consequences on those who underinvest in safety, and the advocates of corrective justice [who] claim that tort liability embodies a moral obligation of culpable parties to provide compensation for losses for which they are fairly considered responsible. Id. (footnotes omitted). Rosenthal states that, despite "an emerging consensus among legal scholars that governmental tort liability lacks a coherent justification,” he "mean[s] to show that the emerging consensus is wrong” and statutory caps are defensible. Id. at 799, 863.
However, authors James J. Dodd and Martin A. Toth, in The Emperor's New Clothes: A Survey of Significant Court Decisions Interpreting Pennsylvania’s Sovereign Immunity Act and Its Waivers, 32 Duq. L.Rev. 1 (1993), include a discussion of the legislative history of sovereign and governmental immunity that reveals that the greatest concerns of the General Assembly were economic factors and how a balance was attempted to be struck with waivers, such as those found in the Tort Claims Act, providing some relief from the harsh rule of immunity. Id. at 1-14, 40-96, 106-08.
Switching the focus of the tort debate from cost reduction and corporate governance to principles of personal responsibility clarifies the principles and remedies for which we stand. Tort law, along with the right of action by an injured person against a wrongdoer, strengthens the bonds of civility among citizens and between government and citizens. Tort’s broad reach expresses not a culture of irresponsibility but rather of accountability, in which all actors are governed by ... equivalent standards of conduct, care dictated by capability and circumstance. When responsibility principles are identified as central, we may find greater receptiveness among legislators, and greаter judicial willingness to reject arbitrary legislated limits on actions and on remedies.
Id. at 258.
. Rule 4019 of the Pennsylvania Rules of Civil Procedure permits a trial court to order sanctions where a party fails to provide sufficient discovery. Pa. R.C.P. No. 4019. This Rule further permits a trial court to enter an “order with regard to the failure to make discovery as is just.” Pa. R.C.P. No. 4019(c)(5). A trial court has discretion whether to sanction a party for violating a discovery order and regarding how severe to sanction a party. Croydon Plastics Co., Inc. v. Lower Bucks Cooling & Heating,
Dissenting Opinion
DISSENTING OPINION BY
Because I believe that the statutory cap is unconstitutional as applied because it violates Ashley Zauflik’s right to receive the jury’s award, I respectfully dissent.
Pennsbury School District provides transportation for its students, unlike other school districts that contract this service out to third-party bus companies. While there is no statutory prohibition against Pennsbury’s conduct, had transportation been provided by a private transportation company, Zauflik would have been entitled to receive the full benefit of the jury’s award of over $14,000,000. Instead, the legislature, by enacting section 8553 of what is commonly known as the political Subdivision Tort Claims Act (Act), 42 Pa. C.S. § 8553, has capped the amount Zauf-lik may recover at $500,000.
Surely the legislature can dеvise legislation that more fairly and adequately addresses this gross disparity. A school district that opts to furnish a service often provided by a private entity should be required to insure itself in the same manner as a private entity and be equally liable for the full amount of an award.
In that regard, I am troubled by the apparent constitutional impairment in disregarding the jury’s award in this case. By imposing a statutory cap, the legislature has arguably infringed on rights guaranteed by the Pennsylvania Constitution.
Trial by jury shall be as heretofore, and the right thereof remain inviolate. The General Assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. Furthermore, in criminal cases the Commonwealth shall have the same right to trial by jury as does the accused.
Pa. Const, art. I, § 6. This constitutional provision anticipates that a jury’s award will not be hollow and that, in the event of a monetary award for a plaintiff, he or she will be entitled to receive the full benefit of the award. Consistent with the inviolate right to a trial by jury is the inviolate right to receive the jury’s award. I note that “a compensatory damage award ‘must bear some reasonable relation to the loss suffered by the plaintiff as dеmonstrated by uncontroverted evidence at trial.’” Paves v. Corson,
Because I believe that the $500,000 cap violates Zauflik’s right to receive the jury’s award, I would conclude that the statutory cap is unconstitutional as applied. For this reason, I dissent.
. I note that the $500,000 cap has not been modified since 1980. According to the Consumer Price Index Inflation Calculator, $1 in 1980 had the same buying power as $2.52 in 2007. The Consumer Price Index Inflation Calculator is available at: http://data.bls.gov.
. Section 1362 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 13-1362 provides that ‘‘[a]ll private motor vehicles employed in transporting pupils for hire shall be adequately covered by public liability insurance in such amount as the board of school directors shall require.”
.In the context of medical malpractice cases, several state supreme courts have held that statutes capping noneconomic damages are unconstitutional. See Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt,