                                   [J-39-2014]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT

   CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.


ASHLEY ZAUFLIK,                              :   No. 1 MAP 2014
                                             :
                     Appellant               :   Appeal from the Order of the
                                             :   Commonwealth Court dated July 3, 2013 at
                                             :   No. 1219 CD 2012 affirming the order of
              v.                             :   the Bucks County Court of Common Pleas,
                                             :   Civil Division, dated May 24, 2012,
                                             :   Judgment Entered June 7, 2012, at No.
PENNSBURY SCHOOL DISTRICT,                   :   2007-09693-27-1.
                                             :
                     Appellee                :   ARGUED: May 6, 2014


                                         OPINION


MR. CHIEF JUSTICE CASTILLE                               DECIDED: November 19, 2014

           Appellant Ashley Zauflik sustained severe and permanent injuries, including a

crushed pelvis and the amputation of her left leg above the knee, when a school bus

owned by, and operated by an employee of, appellee Pennsbury School District

(“Pennsbury”) accelerated out of control onto a sidewalk and struck twenty students.

The issue presented does not concern liability. Rather, the appeal presents a legal

challenge to the constitutionality of the $500,000 statutory limit available in tort from a

local agency such as Pennsbury. The lower courts, consistently with governing law from

this Court, denied the challenges to the damages cap. We are now asked to reconsider

our prior decisions, in light of a series of constitutional arguments forwarded by appellant.

After due consideration of those claims, we affirm.
                                     I.     Background


           Appellant filed this negligence action against Pennsbury and other defendants;

only Pennsbury remained at time of trial, and only Pennsbury is involved in this appeal.1

In a pretrial stipulation, Pennsbury admitted liability and that its employee bus driver

caused the accident. At the time of the accident, Pennsbury had $11 million in liability

and excess insurance coverage. But, Pennsbury maintained that its liability was limited

to $500,000, the statutory limit on damages recoverable against a local government

agency under the Tort Claims Act, 42 Pa.C.S. §§ 8501-8564 (the “Act”).2 Under Section

8501 of the Act, a “local agency” is defined as a government unit other than the

Commonwealth government and includes “an intermediate unit” and “municipalities

cooperating in the exercise or performance of governmental functions, powers or

responsibilities. . . .” There is no dispute that the definition of “local agency” includes a

public school district such as Pennsbury.


       Section 8541 of the Act declares generally that “no local agency shall be liable for

any damages” for an injury caused by the agency or its employees, but Section 8542 of


1 Appellant received funds from other defendants pursuant to confidential settlement
agreements, but those settlements are not at issue in this appeal.

2 Chapter 85 of Title 42 of the Pennsylvania Statutes is commonly referred to as the Tort
Claims Act, but the chapter is actually entitled “Matters Affecting Government Units,” and
includes subchapter B (“Actions Against Commonwealth Parties” including “sovereign
immunity”) and subchapter C (“Actions Against Local Parties” including “governmental
immunity”). The Act provides, inter alia, tort immunity for the Commonwealth and local
agencies, with certain enumerated exceptions. See also 1 Pa.C.S. § 2310 (intent of
General Assembly is that Commonwealth, its officials and employees, shall enjoy
sovereign immunity and remain immune from suit except where General Assembly
specifically waives immunity).



                                      [J-39-2014] - 2
the Act describes exceptions to that immunity under certain circumstances, including

liability for damages arising out of the negligent operation of a motor vehicle, which

exception applies in this case. 42 Pa.C.S. §§ 8541-42.3 However, the Act also includes

a statutory limitation on the amount of damages recoverable in cases where

governmental immunity is waived under Section 8542. This “statutory cap” or “damages

cap” is codified at Section 8553 of the Act: “Damages arising from the same cause of




3   Section 8542 provides, in pertinent part:

        Exceptions to governmental immunity
        (a) Liability imposed.--A local agency shall be liable for damages on
        account of an injury to a person or property within the limits set forth in this
        subchapter if both of the following conditions are satisfied and the injury
        occurs as a result of one of the acts set forth in subsection (b):

            (1) The damages would be recoverable under common law or a statute
            creating a cause of action if the injury were caused by a person not
            having available a defense under section 8541 (relating to
            governmental immunity generally) or section 8546 (relating to defense
            of official immunity); and

            (2) The injury was caused by the negligent acts of the local agency or an
            employee thereof acting within the scope of his office or duties with
            respect to one of the categories listed in subsection (b). . . . .

        (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. . . .

42 Pa.C.S. § 8542(a), (b)(1).




                                        [J-39-2014] - 3
action or transaction or occurrence or series of causes of action or transactions or

occurrences shall not exceed $500,000 in the aggregate.” Id. § 8553(b).4

      Based on this statutory limit on the damages recoverable by appellant in a tort

action against Pennsbury, Pennsbury filed a petition to pay the entire $500,000 into court

and forego trial, but appellant opposed the request, and the matter proceeded to trial on

damages only. Following a four-day trial, the jury returned a verdict against Pennsbury

in the amount of $14,036,263.39, which included $338,580 for past medical expenses,

$2,597,682 for future medical expenses, and $11.1 million for past and future pain and

suffering. Pennsbury filed a post-trial motion to mold the verdict to $500,000, pursuant to

the Act’s damages cap. In response to Pennsbury’s motion, appellant argued that the

statutory damages cap is unconstitutional on several grounds, but the trial court, while

opining that the circumstances of the case directed “an unfair and unjust result,” followed

precedent upholding the damages cap as constitutional, molded the verdict, and entered

judgment for $502,661.63, which amount included delay damages.

      A divided three-judge panel of the Commonwealth Court affirmed. Zauflik v.

Pennsbury School Dist., 72 A.3d 773 (Pa. Cmwlth. 2013). In a majority opinion by Judge

Cohn Jubelirer, and joined by President Judge Pellegrini, the court rejected all of

appellant’s constitutional challenges.5 Based on stare decisis, and specifically on this


4 A similar damages cap is included in Section 8528 of the Act with regard to tort claims
against the Commonwealth itself: “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 $250,000 in favor of any plaintiff or $1,000,000 in the aggregate.” 42
Pa.C.S. § 8528(b).

5 The court observed that the parties did not explicitly engage in an Edmunds analysis,
but that this was not a fatal waiver of appellant’s state constitutional claims. Zauflik 72
(continuedK)

                                     [J-39-2014] - 4
Court’s decisions in Carroll v. County of York, 437 A.2d 394 (Pa. 1981), and Smith v. City

of Philadelphia, 516 A.2d 306 (Pa. 1986), the court held that the Act’s damages cap does

not violate the “remedies clause” of Article I, Section 11 of the Pennsylvania Constitution.6

72 A.3d at 784-85. The court further held that the statutory cap does not violate Article

III, Section 18,7 relying again on this Court’s precedential decision in Smith. Id. at 785.

The court also rejected appellant’s claims that the damages cap violates the separation of

powers by impairing the authority of the Commonwealth’s judiciary under Article V,

Section 1 of the Constitution, that the cap violates the Article I, Section 6 right to a jury trial

by forcing a remittitur of the jury’s verdict, and also appellant’s arguments that the

damages cap violates the equal protection guarantees of the Pennsylvania and U.S.

Constitutions.    Id. at 785-96.     The court explained that, although the “very tragic

circumstances of this case weigh heavily. . .[,] as an intermediate appellate court

confronting significant and unwavering precedent, our role must be one of restraint. In

sum, whether the existence of the excess policy or a different governmental interest could

(Kcontinued)
A.3d at 780 n.8 (citing Commonwealth v. Edmunds, 586 A.2d 887, 894 (Pa. 1991) and
Commonwealth v. White, 669 A.2d 896, 899 (Pa. 1995)).

6 Article I, Section 11 provides: “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.”

7 Article III, Section 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. . . . ”




                                         [J-39-2014] - 5
be a factor that changes the balance of interests in the constitutional analysis in this case

is intriguing, and perhaps appealing, it is not within this Court’s purview.” Id. at 796.

The court concluded that it is the role of the General Assembly “to make the difficult policy

decisions and enact them into law if such decisions receive the support of the necessary

majority,” and thus affirmed the trial court’s order molding the jury verdict to reflect the

Act’s $500,000 damages cap. Id. at 797-98. Senior Judge Friedman filed a dissenting

opinion on the basis that, in her view, the damages cap violates appellant’s constitutional

right to a jury trial. Id. at 798-99. Appellant filed a petition for allowance of appeal.



                                     II. Issues on Appeal

       This Court granted allocatur on the following issues as framed by appellant:


       (1) Does the Act's liability cap violate equal protection principles in this case
       where (a) the cap reduced the jury's verdict by over 96% because
       [appellant] was injured by a local agency [that] operated the school bus; (b)
       [appellant] would be entitled to recover the jury's full verdict had a private
       entity instead operated the school bus, as in [sic] commonplace among
       school districts; and (c) as this Court held forty years ago, political
       subdivision immunity is “an anachronism, without rational basis” because
       local agencies may purchase liability insurance and tort liability promotes
       accountability and accident-prevention? See Ayala v. Philadelphia Board
       of Public Educ., 453 Pa. 584, 305 A.2d 877, 881–83 (1973).

       (2) Does the Act's liability cap violate equal protection principles in this case
       where (a) Pennsbury purchased $11 million in insurance, funded by
       taxpayers, including [appellant's] parents; (b) [appellant] could recover her
       judgment at least to the extent of the available insurance; and (c) the
       Commonwealth Court's majority opinion acknowledged that the available
       insurance presented “intriguing, and perhaps appealing” issues regarding
       the Act's constitutionality?

       (3) Does the liability cap violate [appellant's] right to jury trial guaranteed by
       Article I, Section 6 of the Pennsylvania constitution where Pennsbury did



                                       [J-39-2014] - 6
       not challenge the verdict's excessiveness yet the liability cap eviscerated
       the verdict by reducing [appellant's] recovery by over 96%?

       (4) Does the liability cap impermissibly infringe on the judicial power set
       forth in Article V, Section 1 of the Pennsylvania constitution by forcing a
       more than 96% remittitur of the jury's verdict in this case, and thereby
       usurping the judiciary's exclusive and inherent power to determine remittitur
       requests?

       (5) Does the liability cap violate the open courts provision of Article I,
       Section 11 of the Pennsylvania constitution by forcing a more than 96%
       remittitur of the jury's verdict and therefore denying [appellant] full redress
       of her injuries?

       (6) Does the liability cap violate the guarantee against liability limitations set
       forth in Article III, Section 18 of the Pennsylvania constitution, where this is
       not a workers' compensation matter?

Zauflik v. Pennsbury School Dist., 84 A.3d 293 (Pa. 2014) (per curiam). In her brief to

this Court, appellant has argued her issues in a slightly different sequence and our

discussion infra will follow the order utilized in appellant’s brief.

       Preliminarily, we recognize that “acts passed by the General Assembly are

strongly presumed to be constitutional” and that we will not declare a statute

unconstitutional “unless it clearly, palpably, and plainly violates the Constitution. If there

is any doubt that a challenger has failed to reach this high burden, then that doubt must be

resolved in favor of finding the statute constitutional.” Pa. State Ass'n of Jury Comm’rs v.

Commonwealth, 64 A.3d 611, 618 (Pa. 2013) (internal citations and quotation marks

omitted). See also Commonwealth v. Mockaitis, 834 A.2d 488, 497 (Pa. 2003) (lawfully

enacted legislation enjoys a presumption of constitutionality); James v. Southeastern Pa.

Trans. Auth., 477 A.2d 1302, 1304 (Pa. 1984) (presumption of constitutionality attached

to lawfully enacted legislation; challenger must meet burden of rebutting presumption of

constitutionality by clear, palpable, and plain demonstration that statute violates

constitutional provision). Courts endeavor to give statutes a constitutional interpretation



                                        [J-39-2014] - 7
if that is reasonably possible. Bricklayers of Western Pa. Combined Funds, Inc. v.

Scott’s Development Co., 90 A.3d 682, 692 (Pa. 2014).



                                        III. Arguments



       Appellant first argues that the statutory damages cap violates equal protection

principles under both the Pennsylvania and U.S. Constitutions, because the cap

discriminates against tort victims based on whether the tortfeasor is a public or a private

entity. According to appellant, she has been denied the equal protection of the laws

under the Fourteenth Amendment, and also the enjoyment of a civil right under Article I,

Section 26, simply because she happened to be seriously injured by a public entity; under

the damages cap she is entitled only to a fraction of the jury verdict another individual –

injured by a private tortfeasor – might recover in its entirety. Appellant argues that her

equal protection rights are further violated because someone injured by a private

tortfeasor would be entitled to recover the proceeds of applicable insurance, where she is

not so entitled. Appellant asserts that Pennsbury could easily have contracted with a

private school bus company, as many school districts do, because transporting students

is not a core activity of education that must be performed by public employees. Thus,

according to appellant, the discrimination here, founded only on the identity of the

tortfeasor, is unfair and her right to compensation should instead be equal to that of other

tort victims, especially where insurance coverage exists, and where Pennsbury may

budget for any premium increases caused by elimination of the damages cap.

       Appellant further states that in the 256 years of this Court’s history without

governmental immunity as provided in the Tort Claims Act, “there is no record evidence

that any local agency has been ruined by tort liability,” and that, in any event, the risk of




                                      [J-39-2014] - 8
severe financial problems for local agencies arising out of unlimited tort liability is

“irrelevant” to the question of governmental immunity. Appellant’s Brief at 31 (citing

Ayala, 305 A.2d at 883 (discussing common law immunity established by decisional law)).

This is particularly true, according to appellant, where there exists insurance coverage,

and the fact that insurance proceeds are available to victims of private tortfeasors

underlines the improper classification applied to appellant under the damages cap.

      Although appellant acknowledges that a plurality of this Court has previously

applied intermediate scrutiny to an equal protection challenge to the Tort Claims Act in

Smith v. City of Philadelphia, 516 A.2d at 311, she argues that we should reconsider that

approach and conclude that strict scrutiny is the correct level of examination. This is so,

appellant asserts, because the right to obtain full recovery in tort is a fundamental right

guaranteed by multiple provisions of the Pennsylvania Constitution, including Article I,

Section 6 (right to jury trial) and Section 11 (right to open courts and full remedy). But,

appellant states that no matter what level of scrutiny this Court applies -- strict,

intermediate or rational basis review -- the damages cap fails to pass constitutional

muster.

      Appellant further argues that the liability cap violates Article III, Section 18 of the

Pennsylvania Constitution, because the General Assembly has improperly limited the

amount to be recovered for personal injuries, contrary to that provision’s plain language.

Section 18 provides that, in no case other than workers’ compensation cases, “shall the

General Assembly limit the amount to be recovered for injuries resulting in death, or for

injuries to persons. . . .” PA. CONST. art. III, § 18. Appellant suggests that the framers

could have drafted a more limited prohibition against caps on recovery; if they had

intended only to bar caps favoring private parties, for example, they might have written

“[other than in workmen’s compensation case], in no other cases against private parties




                                      [J-39-2014] - 9
shall the General Assembly limit the amount to be recovered.” Appellant’s Brief at 38.

Appellant also cites Robinson Twp. v. Commonwealth, 83 A.3d 901 (Pa. 2013), for the

proposition that the plain language of Section 18 directs invalidation of the damages cap,

just as a plain language reading of Article I, Section 27, the Environmental Rights

Amendment, supported the invalidation of certain provisions of the Oil and Gas Act at

issue in Robinson.

       According to appellant, the damages cap also violates Article I, Section 11 of the

Pennsylvania Constitution, which guarantees “open courts” and provides that individuals

“shall have remedy by due course of law, and right and justice administered without sale,

denial or delay” for injuries suffered. PA. CONST. art. I, § 11. Appellant notes that

Section 11 is included in Article I, the constitutional Declaration of Rights which generally

limits the power of state government to restrict rights reserved to the people, and this

confirms “that the open courts provision represents a specific reservation of individual

rights at government’s expense.” Appellant’s Brief at 43 (citing Robinson Twp., 83 A.3d

at 947-48). Appellant argues that Section 11 recognizes a fundamental right, or at least

an important one, and therefore heightened scrutiny should apply to the analysis of this

claim. See James v. SEPTA, 477 A.2d at 1305-06 (intermediate scrutiny applies to

claim that notice provision for suits against government unit violated equal protection

principles); Kelly v. Brenner, 175 A. 845, 847 (Pa. 1934) (Section 11 right to open courts is

fundamental right). Appellant concedes that the second sentence of Section 11 allows

the General Assembly to direct how, where and when “the Commonwealth” may be sued,

but she argues that local agencies such as a school district are not “the Commonwealth,”

see 42 Pa.C.S. § 102 (term “Commonwealth” does not include any political subdivision,

municipal or other local authority), and Section 11 therefore does not authorize the




                                      [J-39-2014] - 10
General Assembly to create any limit on the remedies that may be sought against an

entity like Pennsbury.

       Appellant also claims that the damages cap violates the separation of powers

doctrine, in that the Pennsylvania Constitution vests judicial power in the Unified Judicial

System only, and that, as a result, only the judiciary may remit excessive verdicts based

on the evidence presented at trial. Appellant argues that, in enacting Section 8553, the

General Assembly usurped this exclusively judicial power by imposing a “statutory

remittitur” on grounds wholly unrelated to the evidence, but rather dependent solely on

the identity of the tortfeasor.

       Appellant also argues that the damages cap violates her right to a jury trial set forth

in Article I, Section 6 of the Pennsylvania Constitution, by “eviscerating the jury’s

decision,” despite the fact that Pennsbury never argued that the verdict was excessive.

Appellant claims that her right to a jury trial was rendered meaningless where the liability

cap operated to impose a 96% reduction in the award returned by the jury after her trial.

According to appellant, the cap improperly burdens her right to a jury trial because the

restriction makes the right “practically unavailable.” Appellant’s Brief at 55 (quoting

Application of Smith, 112 A.2d 625, 629 (Pa. 1955)).

       Finally, appellant relies on the doctrine of stare decisis to argue that Ayala should

govern here. Appellant reviews the history of governmental immunity as it arose in

Pennsylvania decisional law, and argues that the Ayala Court correctly abolished such

immunity in a case with similar facts to those now before the Court, involving serious

injury to a public school student, on the basis that “the rule of governmental immunity for

tort is an anachronism, without rational basis, and has existed only by the force of inertia.”

305 A.2d at 883. Appellant argues that respect for stare decisis directs that Ayala be

followed here.      Although Ayala’s abrogation of judicially-created immunity was




                                      [J-39-2014] - 11
undermined by the enactment in 1978 of the Act, and its revision in 1980 to include the

damages cap at issue in this appeal, appellant nevertheless argues that the statutory cap

should be struck down because Ayala’s reasoning is no less persuasive in the face of a

legislatively-conferred partial immunity.    Thus, according to appellant, Ayala is still

entitled to deference, especially “against a stark backdrop of catastrophic injury caused

by a defendant’s admitted negligence.” Appellant’s Brief at 23. Appellant argues that

Ayala should apply at least to the extent necessary to allow appellant to recover the $11

million liability limit in insurance coverage voluntarily purchased by Pennsbury, and

further that immunity should not apply at all where local agencies are free to purchase

insurance or insure themselves.       In appellant’s view, unlimited tort liability against

governmental agencies promotes accountability and accident-prevention.

       The Pennsylvania Association for Justice (“PAJ”) and the American Association

for Justice (“AAJ”) each filed an amicus brief in support of appellant. The PAJ echoes

appellant’s reliance upon Ayala for the proposition that governmental immunity has no

rational basis.   The PAJ also asserts that a local government unit is a better

loss-distributing agency than innocent injured victims, and complains that the General

Assembly enacted the statutory cap in spite of this Court’s guidance in Ayala. According

to the PAJ, the Court in Smith supposedly ignored its own precedent and stare decisis in

favor of a presumption of constitutionality.     The PAJ then argues that the statutory

classification at issue here is based on the arbitrary status of the defendant as a public or

a private entity. Separately, the PAJ points out that the amount of the damages cap has

not been increased in thirty-six years, although the cost of living has tripled since then,

and that, in any event, Pennsbury should be deemed to have affirmatively waived

application of the cap when it purchased insurance. The AAJ argues that governmental

immunity has no constitutional status; rather, immunity once existed as a matter of the




                                      [J-39-2014] - 12
common law, arising from judicial decisions, but it is now found in legislation that must

conform to constitutional limitations. According to the AAJ, the classification based on

whether the tortfeasor is a public or private entity is irrational; in AAJ’s view, where a

public school district is an employer competing in a commercial industry, nothing

distinguishes it from a private employer in terms of responsibility for an employee’s

negligence. Moreover, argues the AAJ, endangerment of the public fisc does not justify

the classification.

       In response to the arguments of appellant and her amici, Pennsbury asserts that

the Act’s statutory damages cap has already been upheld against constitutional

challenge, and that none of the theories of challenge presented in this appeal warrants a

different result.     Pennsbury relies on Smith, 516 A.2d 306, which involved a gas

explosion in Philadelphia that killed seven, injured many others, and caused extensive

property damage.        Seventy-two plaintiffs sued the City of Philadelphia and other

municipal entities in Smith, and the trial court held that the Section 8553(b) damages cap

was unconstitutional. However, on direct review, this Court reversed and upheld the

cap, ruling that Article I, Section 11 of the Pennsylvania Constitution grants the General

Assembly the authority to regulate the manner in which the Commonwealth and its

political subdivisions may be sued.     Id. at 308-09.   Pennsbury also cites the 1981

decision in Carroll, 437 A.2d 394, the first decision from this Court to uphold the cap

against constitutional challenge, and many other Commonwealth Court cases decided

since then. Pennsbury’s Brief at 15 n.10. Pennsbury asserts that no Pennsylvania

appellate court has ever reached a conflicting decision in the decades since Carroll, and

that legislatively-conferred partial governmental immunity in general has long been the

rule in this Commonwealth, notwithstanding the holding in Ayala abrogating common law

immunity.




                                     [J-39-2014] - 13
       Pennsbury argues that applying the principles of stare decisis to reject appellant’s

challenge here will promote the stability and predictability of the law necessary for political

subdivisions to operate within real fiscal constraints and still provide important public

services. Pennsbury insists that it is the General Assembly that has the resources and

authority to debate about and then fashion appropriate legislation to correct any

perceived flaw in the statutory framework, because the issues in this case essentially

raise policy questions rather than questions properly resolvable in the adversarial judicial

system. According to Pennsbury, courts across the country, with rare exception, have

rejected federal and state constitutional challenges to statutes limiting the amount

recoverable in tort against states and their subdivisions. See Pennsbury’s Brief at 29

n.22 (citing cases).

       As to appellant’s specific constitutional challenges, Pennsbury argues that the law

is clear that every claim fails. First, Pennsbury points out that appellant’s claim that the

damages cap denies her right to equal protection, as compared to the victim of a private

tortfeasor, was raised and rejected in Smith. 516 A.2d at 310. Pennsbury states that

the Smith Court applied intermediate scrutiny to the statutory cap to analyze whether an

important government interest – preservation of the public treasury against the possibility

of large recoveries in tort cases – was closely related to the classification established by

the statutory scheme, and determined that it was so related. Id. at 311. Moreover,

argues Pennsbury, this Court is not the appropriate forum to address appellant’s policy

arguments regarding the consequences of a damages cap, such as the culture of

complacency or lack of accountability on the part of local agencies that appellant alleges

is engendered by the cap, or whether busing students to school ought to be protected as

a core function of a public school district; such policy issues are better left to the

Legislature, according to Pennsbury.




                                      [J-39-2014] - 14
       Also, Pennsbury argues that, in enacting the statutory cap, the General Assembly

considered the fact that such a limitation actually enables public entities to assess and

manage their risks, which in turn allows local agencies to budget for and provide the core

services for all citizens that they are expected to provide. See Carroll, 437 A.2d at 397.

Pennsbury further argues that its purchase of insurance to protect against liabilities not

subject to the Act and its damages cap does not affect the analysis of whether the cap

passes constitutional muster. For example, the Act’s statutory cap does not apply to

liability for violations of federal law, or liability for zoning or eminent domain challenges.

See Dunaj v. Selective Ins. Co., 647 A.2d 633, 635 n.3 (Pa. Cmwlth. 1994). Pennsbury

asserts that the availability of insurance coverage is almost always irrelevant as a matter

of law in a tort action, and appellant’s arguments on this point should likewise be rejected.

The availability of insurance coverage has nothing to do with the propriety of a statutory

classification under an equal protection analysis, according to Pennsbury. Pennsbury

argues that the law is clear that the Act “in no manner evinces a legislative intent to waive

the damages limitation upon purchase of liability insurance by a local agency.” Spisak v

Downey, 618 A.2d 1174, 1175 n.1 (Pa. Cmwlth. 1992). And, Pennsbury points out, prior

to the “abolition” of common law immunity in Ayala, which led to a void later addressed by

enactment of the Act, this Court specifically rejected an argument that a school district’s

purchase of liability insurance constituted a waiver of governmental immunity. Supler v.

School Dist. of N. Franklin Twp., 182 A.2d 535, 537 (Pa. 1962).

       Next, Pennsbury argues that the Act’s damages cap does not violate the “anti-cap”

provision of Article III, Section 18, and cites to Smith, which specifically considered and

rejected this claim. According to Pennsbury, the Smith Court, in considering the history

of Section 18, determined that its anti-cap language applies only to cases involving

private defendants, because common law immunity already protected public tortfeasors




                                      [J-39-2014] - 15
at the time the provision was adopted, and “the Framers would have had no reason to

concern themselves with governmental liability in tort. . . .” 516 A.2d at 309-10. In

particular, Pennsbury notes, school districts historically had been entirely immune from

suit. See Ford v. School Dist. of Kendall Borough, 15 A. 812 (Pa. 1888).

       According to Pennsbury, neither does the statutory damages cap violate Article I,

Section 11, which guarantees that “courts shall be open” and remedies be available for

injuries. PA. CONST. art. I, § 11. Pennsbury focuses on the second sentence of Section

11 itself, which expressly authorizes the General Assembly to direct how and where

lawsuits may be brought against the Commonwealth, and notes that the Commonwealth

has been held to include political subdivisions such as a school district. See Carroll, 437

A.2d at 396. See also Smith, 516 A.2d at 309. Nor does the damages cap violate the

separation of powers doctrine, according to Pennsbury, because there can be no such

violation if the Legislature has the power to enact the subject limitation. In this case,

Article I, Section 11 clearly vests in the General Assembly the power to direct how suits

may be brought against the Commonwealth, and the Act’s damages cap is one way in

which the General Assembly has utilized that power. Finally, Pennsbury argues that the

damages cap does not violate appellant’s right to a jury trial. Pennsbury notes there is

no unfettered right to a jury trial in any event, but appellant’s argument is particularly

meritless because appellant actually proceeded to a full jury trial in this case.

       No fewer than ten amicus curiae briefs were filed on behalf of Pennsbury, by

twenty-eight different local government entities, political subdivisions, and organizations;

unsurprisingly, all discuss the negative financial ramifications of the limitless tort liability

that would follow from acceptance of appellant’s position. First, the Commonwealth of

Pennsylvania reiterates Pennsbury’s position that this Court has repeatedly held that the

General Assembly is authorized to assert or waive immunity as it sees fit, and to impose




                                       [J-39-2014] - 16
damages caps for cases in which it waives immunity; according to the Commonwealth,

appellant has offered no principled basis for reexamination of those decisions. The

Commonwealth argues that it is untenable to claim that legislation expressly authorized

by the Constitution – pursuant to Article I, Section 11 – violates that same Constitution.

With regard to appellant’s equal protection claim, the Commonwealth notes that the

classification about which appellant complains was created by the Constitution itself, and

this Court need not even reach the question of the proper scope of review. But, the

Commonwealth notes that federal courts have analyzed immunity provisions under a

rational basis paradigm. See Miller v. U.S., 73 F.3d 878 (9th Cir. 1995) (no fundamental

right to bring suit against government employee). The Commonwealth also notes that

appellant’s reliance on Ayala is misplaced because that case did not involve an equal

protection challenge; the question there was only whether a judicially-created common

law immunity should be abandoned. Respecting appellant’s argument regarding the

right to a jury trial, the Commonwealth notes that, because Section 11 allows the General

Assembly to direct the procedure for resolving suits against the Commonwealth, and – in

theory – the General Assembly could thus eliminate jury trials in this area altogether, the

less drastic damages cap is certainly constitutional. Finally, the Commonwealth notes

that the cap is a legislative device and not a remittitur, so there is no separation of powers

problem.

       The City of Philadelphia, the City of Pittsburgh and Allegheny County argue on

behalf of Pennsbury that the $500,000 cap is essential to their operation as

municipalities. These local governments advise that they are self-insured because of

the prohibitive cost of – and their inability to procure – other insurance. Elimination of the

cap would increase their exposure to risk and stretch already limited resources, as well as

create more barriers to providing necessary services to their citizens.




                                      [J-39-2014] - 17
       The Pennsylvania County Commissioners, Pennsylvania Chamber of Business

and Industry, Pennsylvania Municipal Authorities Association, Pennsylvania Municipal

League, Pennsylvania School Boards Association, Pennsylvania State Association of

Boroughs, Pennsylvania State Association of Township Commissioners, and the

Pennsylvania State Association of Township Supervisors argue that for more than

twenty-five years now, local government has relied on the Act’s cap to protect their

taxpayers and allow them to provide essential government services to the public.

Uncapped tort liability would impose significant financial burdens on these entities.

Similarly, the Pennsylvania Public Transportation Association, SEPTA, the Port Authority

of Allegheny County, and the Pennsylvania Turnpike Commission oppose uncapped

liability for tort verdicts such as appellant’s -- the amount of which actually exceeds the

total annual revenue for most transit authorities in Pennsylvania. The Crawford Area

Transportation Authority & Indiana County Transit Authority also press these arguments

and further note that they do not have the power of taxation to make up for losses they

would suffer due to uncapped tort liability; even one claim like appellant’s would

eviscerate their small budgets and end their ability to provide bus service to all citizens in

underserved rural areas. The State Association for Transit Insurance argues that the

purchase of an insurance policy to protect local governments against claims that are not

subject to the damages cap, such as federal civil rights claims, does not and should not

constitute a waiver of statutorily-conferred immunity.

       The Philadelphia Housing Authority and the Housing Authority Risk Retention

Group both argue on behalf of Pennsbury that their ability to provide affordable housing

would be jeopardized by uncapped liability.         The American Insurance Association,

Property Casualty Insurers Association of America, Insurance Federation of

Pennsylvania, Pennsylvania Defense Institute, and Philadelphia Association of Defense




                                      [J-39-2014] - 18
Counsel all argue that the amount of insurance obtained by local governments should be

irrelevant to a constitutional analysis of the damages cap. Similarly, the Delaware Valley

Insurance Trust and Pennsylvania Intergovernmental Risk Management Association

argue that discarding the Act’s cap would jeopardize the availability of insurance

coverage for claims not covered by the Act, and that the General Assembly is best suited

to address the viability of the cap as a matter of public policy.

       Appellant filed a brief in reply to Pennsbury’s arguments and those of the

Pennsbury amici. Appellant challenges, inter alia, Pennsbury’s recitation of the common

law history of governmental immunity in Pennsylvania, stating that immunity was never

the rule but rather applied on a case-by-case basis, and that there was never a cap on

recovery of damages against a municipality until 1978 with the adoption of the Act.

Appellant also rejects Pennsbury’s argument that the judiciary may not make policy

decisions regarding the statutory damages cap; she argues that it is the province of this

Court to determine whether the cap is constitutional or not. Appellant further argues that

Pennsbury incorrectly asserts that local agencies are the same as the Commonwealth for

purposes of Section 11-based legislative authority to direct the manner in which suits may

be brought. Appellant also posits that other states’ case law on the subject is not

controlling here, where Pennsylvania’s unique constitutional provisions are at issue.

       Respecting the arguments posed by Pennsbury’s amici, appellant first urges that

this Court should not allow their sheer numbers “to swamp its constitutional reasoning.”

Reply Brief at 6. Appellant argues that even if the elimination of the damages cap would

present financial challenges to local agencies, the Constitution should nevertheless direct

the proper result. Appellant further states that much of the discussion by amici regarding

the budgetary burdens of local agencies is not based on evidence of record, and should

not provide grounds for this Court’s decision.        Finally, with regard to the General




                                      [J-39-2014] - 19
Assembly’s authority to consider public policy and draft legislation, appellant argues that

a judicial decision to strike down the damages cap would present an opportunity for new

and improved legislation, including provisions to assist local agencies with purchasing

insurance or pooling their risks. Appellant argues that the current statute should not be

permitted to stand and prevent her from achieving a full recovery for her serious injuries.



                                       IV. Discussion

                                   A. Historical Context



       Although appellant provides an alternative argument that is slightly more modest

(i.e., that she should at least be permitted access to Pennsbury’s $11 million excess

insurance policy coverage), her most basic and recurring theme is that governmental

entities like Pennsbury should not enjoy any immunity from tort liability.              The

underpinning of appellant’s overriding absolutist refrain is the Court’s 1973 decision in

Ayala v. Philadelphia Board of Public Education, 305 A.2d 877, which appellant says

should control here by virtue of stare decisis. Appellant insists that “Ayala is the starting

point and compels the striking of the liability cap. Ayala is the case this Court should

follow.” Appellant’s Brief at 58. To better frame and focus appellant’s actual, individual

constitutional challenges, we begin with a brief examination of common law

governmental immunity, which culminated in Ayala, and which provides the backdrop for

the partial and capped immunity, legislatively-conferred in the wake of Ayala, that is at

issue here.

       The parties, and our prior cases, have settled on Russell v. The Men of Devon, 100

Eng. Rep. 359 (1788), as demonstrating the English concept of sovereign immunity,

where the court held that there could be no recovery of damages by plaintiffs whose




                                     [J-39-2014] - 20
“waggon” was damaged due to the condition of a bridge which, it was argued, “ought to

have been repaired by the county,” the “county” in this instance being an unincorporated

group of individual inhabitants. Id. at 360. In denying relief, the court expressed the

“general principle of law. . . that it is better that an individual should sustain an injury than

that the public should suffer an inconvenience. . . . [I]t is better that the plaintiff should be

without a remedy.       However there is no foundation on which this action can be

supported; and if it had been intended, the Legislature would have interfered and given a

remedy. . . .” Id. at 362-63. And, as early as Pennsylvania’s Constitution of 1790, the

Commonwealth government enjoyed complete immunity if it so chose; the Constitution

provided that “[s]uits may be brought against the Commonwealth in such manner, in such

courts and in such cases as the Legislature may by law direct,” which language remains

in Article I, Section 11 of the current Constitution. See THOMAS R. WHITE, COMMENTARIES

ON THE CONSTITUTION OF PENNSYLVANIA, 161 (1907).          Appellant’s position that the general

concept of immunity was not imported into Pennsylvania until much later – in 1888, in

Ford v. School District, 15 A. 812 – is belied by this constitutional language. See also

Biello v. Pa. Liquor Control Bd., 301 A.2d 849, 850 (Pa. 1973) (doctrine of sovereign

immunity arrived in Pennsylvania in Respublica v. Sparhawk, 1 Dall. 357, 1 L.Ed. 174

(1788), in which Court denied recovery to plaintiff seeking value of flour relocated by

Commonwealth War Board pursuant to statute intended to prevent British capture of

supplies, stating “it is better to suffer a private mischief, than public inconvenience”).

       It is true that some early court decisions in Pennsylvania allowed tort recovery

against government entities under certain circumstances.            See, e.g., Dean v. New

Milford Twp., 1843 WL 5096 (Pa. 1843) (incorporated township which could lay tax to

furnish means for building roads and highways liable for negligence in maintaining and

repairing those roads). But, others did not. See, e.g., Mayor v. Randolph, 1842 WL




                                       [J-39-2014] - 21
4889 (Pa. 1842) (City had authority to stop up creek which resulted in flood to plaintiff’s

land; plaintiff could not challenge manner or purpose of action); Green v. Borough of

Reading, 1840 WL 3772 (Pa. 1840) (plaintiff could not recover from borough for damage

caused to his property by borough roadwork). And, by the time Ford was decided in

1888, the rule of governmental immunity prevailed in that case of a public school student

who was severely injured as the result of a school district employee’s negligence. 15 A.

812. The Ford Court noted the distinction between public and private actors, and added

that “the least stringency should be applied to school-districts, which are established for

the administration of what may be regarded as a great public charity.” Id. at 815. Under

this common law regime of governmental immunity, plaintiffs were afforded no money

damages in tort actions at all, even despite clear negligence by the public tortfeasor.

See, e.g., Kesman v. Sch. Dist. of Fallowfield Twp., 29 A.2d 17 (Pa. 1942) (school district

not liable for injury to student caused by school bus driver’s negligence; collecting cases);

Devlin v. Sch. Dist. of Phila., 10 A.2d 408, 410 (Pa. 1940) (school district is state agency

performing governmental functions and is not liable for negligence by its servants who act

within scope of these functions).

       Decisions in this Court in the mid- to later 20th century betrayed an increasing

judicial unease with this doctrine of complete governmental immunity, and the Court

began to chip away at that immunity, articulating a variety of rationales. See, e.g., Morris

v. Sch. Dist. of Twp. of Mt. Lebanon, 144 A.2d 737 (Pa. 1958) (plaintiffs could recover in

tort action against school district for death of child who drowned during summer camp;

camp activities were proprietary function of type regularly conducted by private

enterprises, and district charged fee for participation). See also Flinchbaugh v. Spera

Const. Co., 264 A.2d 708, 709 (Pa. 1970) (per curiam) (Roberts, J., dissenting) (positing

that plaintiff was injured when school district was performing proprietary function and thus




                                      [J-39-2014] - 22
should be allowed to recover damages; adding that doctrine of governmental immunity

should simply be discarded). On multiple occasions, the Court also appealed to the

General Assembly to consider the immunity issue. See, e.g., Dillon v. York City Sch.

Dist., 220 A.2d 896, 898 (Pa. 1966) (“Only the legislature can deal with the field of

immunity in all of its state, municipal corporations and school district aspects by enacting

a comprehensive bill based on extensive hearings and investigation. On the other hand,

we continue to be confronted with the problem on the most fragmented basis.”); Supler v.

Sch. Dist., 182 A.2d at 537 (school district is immune from suit for damages caused by

employee’s negligence; change in immunity rule “should be made by the Legislature and

not by the Courts”); Morris, 144 A.2d at 738 (legislation is “sorely needed to deal

effectively with tort claims arising out of the conduct of governmental activities”). See

also Brown v. Commonwealth, 305 A.2d 868, 870 & n.6 (Pa. 1973) (“[I]t falls to the

Legislature to determine the circumstances under which immunity may be waived. . . . We

reiterate our urging of the need for comprehensive legislative action permissible under

Article I, Section 11.”). This unease with complete governmental immunity was felt

across the nation. See, e.g., Ayala, 305 A.2d at 878-79 (collecting cases from other

jurisdictions which had judicially abandoned doctrine of governmental immunity).

However, in this Commonwealth, the General Assembly had failed to act, and the matter

came to a head in Ayala, which expressly overruled earlier cases in which the Court had

declined to judicially abrogate the doctrine. Id. at 878 n.3. Indeed, by that time, the

Court’s familiarity with the difficulties posed by common law immunity was such that

Justice Roberts’s majority opinion in Ayala began by simply declaring that the doctrine

was “long since devoid of any valid justification.” Id. at 878.

       The underlying facts in Ayala are similar to those presented here, although the

decision was obviously powered by the growing unease with the legal doctrine, not the




                                     [J-39-2014] - 23
particular facts. A 15-year-old student’s arm was caught in a shredding machine during

a class in a Philadelphia school, and as a result of his serious injuries, his arm was

amputated. The student and his parents sued the school district for negligence, and the

Philadelphia Board of Public Education filed preliminary objections asserting the defense

of governmental immunity.      305 A.2d at 878.        The preliminary objections were

sustained, the case dismissed, and the Pennsylvania Superior Court affirmed in a per

curiam order, with three judges in concurrence noting their discontent with the doctrine,

but recognizing that only the Supreme Court could abrogate it.

      The Supreme Court reversed by a 4-3 vote, abolishing outright the doctrine of

governmental immunity. 8    The Court first recognized that government agencies like

school districts had long been immune from suit at Pennsylvania common law. The

Court opined that the historical roots of the doctrine could be traced to English common

law, possibly due to English courts’ having difficulty with the principle of respondeat

superior, and also recognized that the concept of immunity was “influenced by the

absence of a fund ‘out of which satisfaction is to be made’” for the potential flood of

actions against political subdivisions if such lawsuits were to be permitted. Id. at 879.

The Ayala Court noted that Pennsylvania had “joined the numerous states adopting the

immunity doctrine,” with the Supreme Court’s 1888 decision in Ford v. School District, 15

A. 812, holding that school districts are not liable for the tortious conduct of their

employees. 305 A.2d at 880.

      Initially, the [Ford] Court noted that school districts are agents of the
      Commonwealth “and are made quasi-corporations for the sole purpose of
      the administration of the commonwealth's system of public education.”
      More importantly, the Court was reluctant to impose liability because “the
      act of assembly provides no fund out of which the directors can pay

8 Chief Justice Jones and Justices Eagen and O’Brien dissented without opinion.
Justice Manderino filed a joining concurrence.



                                    [J-39-2014] - 24
       damages resulting from their own misconduct or that of their officers.” The
       Court further stated that “individual advantage must give way to the public
       welfare.”

                Although the English courts abandoned the doctrine and permitted
       suits against municipalities and school districts, this Commonwealth
       continued to deny recovery. In Morris v. Mount Lebanon Township School
       District, 393 Pa. 633, 636, 144 A.2d 737, 738 (1958), the Court refused to
       completely abrogate the immunity doctrine, but held that school districts,
       like municipal corporations, “are not immune from liability in tort for the
       negligent acts of their servants committed in the course of the (school
       district's) proprietary functions.”
Id. at 880-81 (quoting from Ford, supra, citations and footnote omitted). The Ayala Court

determined that “no reasons whatsoever exist for continuing to adhere to the doctrine of

governmental immunity. Whatever may have been the basis for the inception of the

doctrine, it is clear that no public policy considerations presently justify its retention.” Id.

at 881.

       By way of further explanation, the Ayala Court noted the historical change from a

“social climate” that had previously protected the rights of the King, to a modern

environment which allows the imposition of liability on private corporate entities, even to

the extent that liability might be extended without traditional fault, on the grounds that

potential personal injury must be calculated as part of the cost of doing business. 305

A.2d at 881-82 (quoting Smith, Municipal Tort Liability, 48 MICH. L. REV. 41, 48 (1949)).

The Court’s decision in Ayala was driven in part by its appreciation that liability follows

tortious conduct in private commercial enterprise, and the Court could discern no reason

for “permitting governmental units to escape the effect of this fundamental principle.” Id.

at 882. The Court recognized that, unlike private corporations, governmental entities do

not profit from their projects, but countered that “the taxpaying public nevertheless does

[profit], and it is the taxpaying public which should pay for governmental

maladministration.     If the city operates or maintains injury-inducing activities or

conditions, the harm thus caused should be viewed as a part of the normal and proper


                                       [J-39-2014] - 25
costs of public administration and not as a diversion of public funds. The city is a far

better loss-distributing agency than the innocent and injured victim.”           Id. (internal

quotations omitted).

       The Ayala Court, writing in 1973 (and without a trial record that included a $14

million jury verdict in a single case), also rejected the idea that a municipality’s potential

financial ruin should weigh against abolishing immunity; the Court concluded that the

then-existing “empirical data does not support the fear that governmental functions would

be curtailed as a result of liability for tortious conduct.” Id. at 883. See also Mayle v.

Pennsylvania Dept. of Highways, 388 A.2d 709, 714 (Pa. 1978) (no evidence that “tort

liability of a government or a public authority has ever resulted in either undue clogging of

the courts or destabilization of government finances”).

       Finally, the Court rejected the argument that abrogation of the doctrine of immunity

should only be accomplished by legislation rather than by judicial determination, stressing

that the doctrine of immunity was judicially imposed, and so it may be judicially

terminated. Ayala, 305 A.2d at 885 (quoting, as direct support, Molitor v. Kaneland

Community Unit District No. 302, 163 N.E.2d 89, 96 (Ill. 1959) (“Having found that

doctrine to be unsound and unjust under present conditions, we consider that we have

not only the power, but the duty, to abolish that immunity. ‘We closed our courtroom

doors without legislative help, and we can likewise open them.’”)). See also Mayle, 388

A.2d at 720 (doctrine of sovereign immunity is manifestly unfair and non-constitutional in

origin, and Court may abolish it). In addition, the Court noted that although it had

suggested in the past “that the Legislature should undertake the abrogation of judicial

immunity,” “[t]hese suggestions do not preclude the Court from now abolishing this

judicially created doctrine.” Ayala, 305 A.2d at 886. The Court thus abrogated the




                                      [J-39-2014] - 26
immunity doctrine, and allowed the Ayalas’ negligence lawsuit against the Philadelphia

school district to proceed under its “newly adopted rule.” Id. at 889.

       In 1978, a few months after the Court abolished the related doctrine of sovereign

immunity for the Commonwealth in Mayle, the General Assembly responded to the

immunity void by enacting the “Political Subdivisions Tort Claims Act,” which partially

resurrected a form of governmental immunity as a legislative matter. See, e.g., 53 P.S. §

5311.201 (“Except as otherwise provided in this act, no political subdivision shall be liable

for any damages on account of any injury to a person or property caused by any act or

omission of the political subdivision or an employee thereof or any other person.”)

(repealed and replaced by Act of October 5, 1980, P.L. 693, No. 142, § 333). Amended

in 1980, and entitled “Government immunity generally,” current Section 8541 of the Act

states: “Except as otherwise provided in this subchapter, no local agency shall be liable

for any damages on account of any injury to a person or property caused by any act of the

local agency or an employee thereof or any other person.” 42 Pa.C.S. § 8541. Other

provisions of the Act specifically limit the circumstances under which local agencies may

be held liable for damages in tort. See 42 Pa.C.S. § 8542 (exceptions to governmental

immunity).    And, also in 1980, the General Assembly further protected government

entities from tort liability when it enacted Section 8553(b), the statutory damages cap at

issue here, which expressly limits damages in permissible lawsuits to $500,000. Thus,

the Act is not so severe as common law immunity, which provided for no recovery; but the

recovery is strictly limited.   It is clear that the Act is intended to “insulate political

subdivisions from tort liability.” Mascaro v. Youth Study Center, 523 A.2d 1118, 1123

(Pa. 1987).

       Almost immediately, this Court was faced with a constitutional challenge to the Act.

In Carroll v. County of York, 437 A.2d 394, plaintiff Carroll’s son committed suicide while




                                      [J-39-2014] - 27
in the custody of the York County Detention Home, and Carroll claimed that the

negligence of the Home’s employees led to his death. After the Home filed preliminary

objections based on tort immunity under the newly enacted legislation, Carroll sought

plenary review by this Court before the trial court could rule, and we granted review. Id.

at 395-96.

       Carroll argued that, by prohibiting a tort victim from successfully suing the

Commonwealth except under certain enumerated circumstances inapplicable to her

case, the Act unconstitutionally “closed” the courts to potential claimants and denied them

a “remedy by due course of law” in violation of Article I, Section 11 of the Pennsylvania

Constitution.   Id. at 396.   The Court rejected the constitutional challenge in a 4-3

decision, with the majority opinion written by Justice Roberts, the author of Ayala. The

Court relied on the last sentence of Section 11, which clearly provides that lawsuits “may

be brought against the Commonwealth in such manner[, in such courts] and in such

cases as the Legislature may by law direct.” The Court held that the General Assembly’s

passage of the Act simply directed the manner in which plaintiffs might sue government

entities, precisely as authorized by Section 11. Id. The Court further indicated that the

Pennsylvania Constitution is “neutral” with regard to “sovereign immunity,” but that the

framers of Article I, Section 11 “intended to allow the Legislature if it desired, to choose

cases in which the Commonwealth should be immune.” Id. (quoting Mayle, 388 A.2d at

716-17). The Court stated that it is “axiomatic” that the Commonwealth’s authority to

choose cases in which it would be immune to suit encompassed its authority to apply that

immunity to its political subdivisions as well. Id.

       The Court also rejected Carroll’s reliance upon Ayala, which is notable given

appellant’s current insistence that Ayala is the case this Court should follow. The Court

stressed that Ayala had abrogated a judicially created doctrine, and then noted that: “This




                                      [J-39-2014] - 28
Court has repeatedly emphasized the fundamental distinction between the abrogation of

a judicially created doctrine, as in Ayala, and the review, as here, of an act of the

Legislature.” Id. at 396-97. Further noting that the Court had previously recognized that

the Legislature “may permissibly limit liability on the basis of a defendant’s status, the

Carroll Court held: “It is not our function to displace a rationally based legislative

judgment. . . . Manifestly, it is within the province of the Legislature to determine that

certain bars to suit are, in its judgment, needed for the operation of local government.”

Id. at 397.

       In Smith v. City of Philadelphia, 516 A.2d 306, this Court specifically upheld the

$500,000 damages cap of Section 8553(b) against claims that it violated the Fourteenth

Amendment’s Equal Protection Clause, and Article III, Sections 18 and 32 of the

Pennsylvania Constitution.9 First, the Court discussed Section 18, which provides that,

except for workers’ compensation matters, “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. III, § 18. The Court broadly reaffirmed that Section 11


9 The Smith plaintiffs apparently claimed that the Article III, Section 32 prohibition against
“special laws” was violated by the damages cap, or at least the trial court granted a
summary declaratory judgment in part on that basis. 516 A.2d at 308. In deciding the
subsequent direct appeal, this Court stated that Section 32 has a “meaning and purpose
sufficiently similar” to the federal Equal Protection Clause to warrant like treatment. Id. at
310 (citing Laudenberger v. Port Authority, 436 A.2d 147, 155 n.13 (Pa. 1981)). See
also Lyles v. Commonwealth, 516 A.2d 701, 702 (Pa. 1986) (issue on appeal is whether
damages cap in cases against Commonwealth violates Equal Protection clause of United
States Constitution and Article III, Section 32 of Pennsylvania Constitution). The Smith
Court did not explain precisely the theory by which the damages cap was said to violate
Section 32. But, we have recognized that the “common constitutional principle at the
heart of the special legislation proscription [of Section 32] and the equal protection clause
is that like persons in like circumstances should be treated similarly by the sovereign.”
Pennsylvania Turnpike Comm’n v. Commonwealth, 899 A.2d 1085, 1094 (Pa. 2006).




                                      [J-39-2014] - 29
authorizes the General Assembly “to regulate the manner, the courts and the cases in

which suits may be brought against the Commonwealth” and that “the Framers intended

that the legislature have complete control over suits brought against the Commonwealth.”

516 A.2d at 309. The Court then expressly rejected the argument that Section 18

prohibits the General Assembly from enacting a damages cap such as Section 8553.

The Court explained:


      As this Court stated in Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897
      (1975), “the full scope and meaning of [Article III, Section 18] should be
      considered in light of the evil intended to be remedied by its adoption.” Id.
      at 396, 346 A.2d at 901. Article III, Section 18 was drafted in 1872 and
      1873, and adopted in 1874 in response to the fact that certain powerful
      private interests had been able to influence legislation which limited
      recovery in negligence cases filed against them.

          In particular, the Framers were reacting to the passage of the Act of
      April 4, 1868, P.L. 58, which limited recoveries in negligence actions
      against railroads and other common carriers. The corporations who
      effected this legislation were perceived by the Framers as a privileged and
      powerful class of overreachers who had purchased special, self-serving
      legislation, and Article III, Section 18 was meant to prevent such powerful
      private interests from unduly affecting the legislative process.
      Consideration of the full scope and meaning of Section 18, therefore,
      reveals that the Framers were addressing themselves to private, not
      governmental defendants.

          It has been argued, however, that the language of Article III, Section 18
      applies to all cases, not merely those involving private defendants (“in no
      other cases shall the General Assembly limit the amount to be recovered”)
      and that the section should not be construed as applicable only to private
      parties. This argument ignores that the Framers would have had no
      occasion to apply the prohibition against limiting damages to government,
      for government, at that time, was immune from suit.

Id. at 309 (citations and footnote omitted). The Court therefore concluded that “Section

18 does not operate to restrict the General Assembly from providing for less than full



                                    [J-39-2014] - 30
recovery for injuries to persons or property where the defendant is a governmental entity.”

Id. at 310.

       Next, the Smith Court rejected Smith’s claims that the damages cap violates equal

protection principles by limiting the city’s tort liability to $500,000, when there is no such

limit on the tort liability of private parties. A plurality of the Court applied heightened (but

not strict) scrutiny and determined that Section 8553 promotes an important

governmental interest the realization of which is closely related to the subject

classification.   516 A.2d at 311.     Justices Zappala and Hutchinson, writing from a

concurring posture, would have required only a rational basis level of scrutiny, and

concluded that “[u]nder the present facts, this test was met.” Id. at 312 (Zappala, J.,

concurring, joined by Hutchinson, J.).

       In contrast to the Ayala and Mayle Courts, the Smith plurality, speaking of

legislatively-conferred immunity, determined that it was “self-evident” that the

governmental interest at stake – “preservation of the public treasury as against the

possibility of unusually large recoveries in tort cases” – was indeed an important one, and

that this interest was closely related to the classification established by the statutory

scheme, because “only persons who might recover against the Commonwealth or its

subdivisions are affected.” 516 A.2d at 311. Accordingly, the Court concluded that the

Act’s limit on damages was not unconstitutional.

       Before turning to appellant’s specific constitutional challenges we note that this

description of the decisional and legislative background in the area of governmental

immunity should make clear that appellant’s underlying claim that Ayala should be

deemed controlling as a matter of stare decisis lacks merit.                Ayala involved a

judicially-created immunity doctrine, not a legislative one; the Carroll Court made plain

that it understood the bedrock distinction when it passed upon the first challenge to the




                                       [J-39-2014] - 31
Tort Claims Act, and the cases involving the legislative version of immunity have

recognized the difference in focus required. With this background in mind, we turn to

appellant’s various challenges to Section 8553, to determine whether she has

demonstrated that the provision clearly, palpably and plainly violates the Constitution.



                                     B. Equal Protection



          Appellant first argues that the statutory damages cap violates equal protection

principles under both state and federal law, notwithstanding prior decisions that it does

not. 10    The equal protection provision of the Pennsylvania Constitution (or, more

precisely, the non-discrimination provision) states that “[n]either 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, §


10 Generally, when a provision of the Pennsylvania Constitution has a federal counterpart
and the state charter is invoked to support a departure from established federal law --
most often, but not always, in areas involving individual rights -- the court should engage
in a four-factor analysis to determine whether the Pennsylvania provision has a different
scope or meaning. Edmunds, 586 A.2d at 894-95 (court should consider: 1) text of
Pennsylvania constitutional provision; 2) history of the provision; 3) related case law from
other states; 4) policy considerations, including unique issues of state and local concern,
and applicability within modern Pennsylvania jurisprudence). In other contexts, this
Court has noted that federal and state equal protection rights are coextensive. Driscoll v.
Corbett, 69 A.3d 197, 209 (Pa. 2013); Erfer v. Commonwealth, 794 A.2d 325, 332 (Pa.
2002). Here, there is no suggestion that the Pennsylvania provision is other than
coextensive, and the parties have not engaged in a formal Edmunds analysis, although
they have included general discussion of the Edmunds factors, as we do. See Robinson
Twp. v. Commonwealth, 83 A.3d 901, 944 (Pa. 2013) (even where not required, analysis
of Edmunds factors may still be helpful).




                                      [J-39-2014] - 32
26. The Equal Protection Clause of the Fourteenth Amendment of the U. S. 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. According to appellant, the Act

violates both constitutional provisions for multiple reasons. First, the Act’s damages cap

reduced her tort recovery to 3.5% of the jury’s verdict simply because a local agency,

rather than a private entity, operated the school bus that injured her; and second, if she

had been injured by a private tortfeasor, she would be entitled to recover the proceeds of

any applicable insurance held by that tortfeasor. In this case, Pennsbury purchased $11

million in insurance coverage for the relevant period. Appellant argues that the limit on

her recovery based upon this public/private distinction is unfair and improperly

discriminates against her.

      In considering the equal protection challenge to the statutory cap in Smith, this

Court recognized that:


      [T]he Fourteenth Amendment does not absolutely prohibit the states from
      classifying persons differently and treating the classes in different ways. As this
      Court stated in Laudenberger v. Port Authority of Allegheny County, 496 Pa. [52,]
      68, 436 A.2d [147,] 155 (1981), “The concept of equal protection . . . demands that
      uniform treatment be given to similarly situated parties. . . . If classifications are
      drawn, then the challenged policy must be reasonably justified.” What counts as
      justification will depend upon which of three types a classification belongs to, what
      the governmental interest is in promulgating the classification, and the relationship
      of that interest to the classification itself.

Smith, 516 A.2d at 310-11 (quoting James v. SEPTA, 477 A.2d at 1306). Therefore, we

must determine the proper level of scrutiny to apply to the alleged discriminatory

classification in this case, i.e., tort victims of local agencies like Pennsbury, whose

damages recovery is capped by Section 8553, while at the same time considering the




                                    [J-39-2014] - 33
nature of the governmental interest promoted by the classification, and the individual

rights affected by it.

       The types of classifications are: (1) classifications which implicate a
       “suspect” class or a fundamental right; (2) classifications implicating an
       “important” though not fundamental right or a “sensitive” classification; and
       (3) classifications which involve none of these. Should the statutory
       classification in question fall into the first category, the statute is strictly
       construed in light of a “compelling” governmental purpose; if the
       classification falls into the second category, a heightened standard of
       scrutiny is applied to an “important” governmental purpose; and if the
       statutory scheme falls into the third category, the statute is upheld if there is
       any rational basis for the classification.


Smith, 516 A.2d at 311 (citation omitted). See also Whitewood v. Wolf, 992 F.Supp.2d

410, 424-25 (M.D. Pa. 2014) (summarizing approaches: strict scrutiny requires

government to demonstrate that law is narrowly tailored to further compelling state

interests; to survive intermediate scrutiny, statutory classification must be substantially

related to important governmental objective; rational-basis review is satisfied if statutory

classification is rationally related to a legitimate governmental purpose, and review for

rationality is highly deferential to legislature, with challenger required to negate every

possible basis for law).

       Appellant argues that even using a rational basis test, the statutory distinction

between plaintiffs who sue public tortfeasors and those who sue private entities must fall

because the transportation of school students is not a core activity of the school district,

and Pennsbury could have contracted its busing activities to a private entity, as many

other school districts do. According to appellant, the fact that Pennsbury did not do so

should not be determinative of her ability to recover full damages, and a holding that

Pennsbury’s choice dictates a damages decision against appellant is irrational. But,

appellant acknowledges that intermediate scrutiny was previously applied to similar

claims in Smith, and she says that intermediate scrutiny, at the very least, should apply


                                      [J-39-2014] - 34
here. Notwithstanding these alternative arguments, appellant also argues that her right

to a full tort recovery is a fundamental right that warrants strict scrutiny.

       Fundamental rights generally are those which have their source in the

Constitution. See Plyler v. Doe, 457 U.S. 202, 216 n.15 (1982); James v. SEPTA, 477

A.2d at 1306. Appellant claims that her right to full recovery from Pennsbury is at least

important, and at most fundamental, because the right is found in multiple provisions of

the Pennsylvania Constitution: the remedies clause of Article I, Section 11, the right to a

jury trial in Article I, Section 6, and the guarantee against liability limits in Article III,

Section 18. As we explain infra, we conclude that none of these constitutional provisions

is violated by the statutory damages cap at Section 8553, and we reject, at the outset,

appellant’s argument that her construction of these provisions mandates a

reconsideration of our prior approach and adoption of a strict scrutiny analysis. The

decision in Smith was by a 5-2 vote: the three-Justice plurality opinion (on the question of

the proper level of scrutiny) filed by Justice Flaherty, and joined by Chief Justice Nix and

Justice McDermott, followed the prior majority decision in James v. SEPTA, 477 A.2d at

1306, which employed “heightened” or intermediate scrutiny, rather than holding that the

right to sue the Commonwealth was fundamental and required strict scrutiny. The Smith

plurality similarly determined that the “right” to a full tort recovery is not a fundamental

right warranting strict scrutiny because the predicate right to bring suit against the

Commonwealth or its political subdivisions is expressly limited by Article III, Section 18

and Article I, Section 11 of the Pennsylvania Constitution, which permit the General

Assembly to limit recovery against governmental units. 516 A.2d at 311. But, the Smith

plurality acknowledged that the right involved is an “important” one, and thus that the

proper question is whether the Act’s damages cap closely serves an important




                                       [J-39-2014] - 35
governmental interest, in this instance, the protection of the public treasury against large

and unpredictable tort recoveries.

       Notably the two-Justice concurrence that provided the majority mandate on the

equal protection question in Smith disagreed with the plurality insofar as it employed

intermediate scrutiny, rather than mere rational basis review; obviously, those Justices

likewise did not believe that a fundamental right was involved. 516 A.2d at 312 (Zappala,

J., concurring, joined by Hutchinson, J.).11 In any event, the Smith Court determined that

the distinction drawn by the Legislature between plaintiffs suing public tortfeasors and

plaintiffs suing private tortfeasors did not violate equal protection principles. See also

Lyles v. Commonwealth, 516 A.2d 701, 703 (Pa. 1986) (damages cap of $250,000 in

cases against Commonwealth does not violate equal protection under U.S. or

Pennsylvania Constitution). Similar equal protection claims were raised and rejected in

James v. SEPTA, supra, where the plaintiff failed to comply with a six-month statutory

notice requirement before suing a local transportation agency for negligence, leading to

the dismissal of his lawsuit on summary judgment. The plaintiff in James argued that “it

is    unlawful     and     unconstitutional     for     government      tortfeasors     and

plaintiffs-against-the-government to be treated one way, while non-governmental

tortfeasors and plaintiffs against non-governmental entities are treated in another.” 477

A.2d at 1305. Applying intermediate scrutiny to the restriction on James’s right to sue a

Commonwealth agency without the limitation imposed by the statutory notice

requirement, the Court determined that “it is self-evident that the prevention of stale and


11  Neither of the dissenting Justices in Smith suggested that strict scrutiny was required.
Indeed, it appeared that both were of the view that the cap could not even survive rational
basis review. See Smith, 516 A.2d at 313 (Larsen, J., dissenting, joined by Papadakos,
J.); id. at 318 (Papadakos, J., dissenting, joined by Larsen, J.).




                                     [J-39-2014] - 36
fraudulent claims is an important and legitimate governmental objective,” and upheld the

statute. Id. at 1307.12

       Without revisiting the disagreement between the Smith Court plurality and

concurrence concerning whether rational basis review or intermediate scrutiny is the

more appropriate approach to a claim like this, we have little difficulty in rejecting the

notion that we should engage in strict scrutiny; and, consistently with James, which

represented a majority view, we will employ intermediate scrutiny.            Doing so, we

conclude, as the Smith plurality did, that this test is met through the cap’s close

relationship to important and legitimate governmental goals, particularly the bedrock

concern with the continued financial viability of local agencies like public school districts.

       Appellant takes issue with the “public fisc” rationale for a damages cap, arguing

that it should not be determinative in a case like this, where Pennsbury actually

purchased insurance coverage that, she alleges, could be used to satisfy a large part of

the jury’s verdict without endangering Pennsbury’s treasury.          Appellant rejects the

counterargument that what makes the purchase of insurance affordable for school

districts like Pennsbury is the very existence of a damages cap for certain types of claims,

and that if the cap were struck down, no insurance company would cover the risks

involved.   Appellant calls this counterargument speculation and argues that, in any

event, Pennsbury has a “large annual budget” that it can use to pay for insurance

premiums, or it could self-insure or participate in risk pooling. Appellant’s Brief at 30-31.

Appellant adds a policy argument that the cap encourages governmental complacency,




12The statute at issue, 66 P.S. § 2036, was repealed and later replaced by 42 Pa.C.S. §
5522(a) (notice required to governmental unit of intent to sue for damages within six
months of injury).




                                      [J-39-2014] - 37
and that Ayala was correct to eliminate common law immunity and thus create an

incentive for safer practices to avoid liability in the first place.

       Preliminarily, we note that the existence, or availability, of insurance coverage is

ordinarily not relevant or admissible in the context of tort litigation. See, e.g., Price v.

Guy, 735 A.2d 668, 671 (Pa. 1999) (jury instruction regarding plaintiff’s election of limited

tort option for motor vehicle insurance was reversible error); Trimble v. Merloe, 197 A.2d

457, 458 (Pa. 1964) (in tort cases, “consideration of the affluence of the defendant, his

ability to pay, or his liability insurance coverage is improper, irrelevant, prejudicial, and

clearly beyond the legally established boundaries.”). See also Pa.R.E. 411 (“Evidence

that a person was or was not insured against liability is not admissible to prove whether

the person acted negligently or otherwise wrongfully. But the court may admit this

evidence for another purpose, such as proving a witness's bias or prejudice or proving

agency, ownership, or control.”). We recognize, of course, that the question of the

availability of insurance coverage arises here in the context of a constitutional challenge

to a statute, where the existence and ramifications of insurance coverage are raised by

appellant as a partial basis for striking down the statute as invalid; but still, for purposes of

that constitutional challenge, it is difficult to see why the availability of insurance in a

particular case would control the inquiry.

       In any event, to the extent that appellant challenges the General Assembly’s

decision to allow tort recovery, but subject to a liability cap, given the theoretical

availability of insurance for public entities, the proper question is whether the General

Assembly could determine, faithfully with the Constitution, that such a scheme struck the

appropriate balance. At heart, this is a question of policy addressed to the General

Assembly itself, which has the greater capacity for broad analysis of such complex




                                        [J-39-2014] - 38
questions as the implications of self-insurance or risk-sharing pools, 13 or the actual

budgetary ability of school districts and other agencies to carry insurance under various

scenarios of uncapped liability. Importantly, the Act’s provisions were based on a report

and recommendations prepared in 1978 by the General Assembly’s Joint State

Government Commission, after a detailed study by a task force consisting of judges,

attorneys and citizens, and the Commission’s report included a specific recommendation

that tort recovery be capped where immunity was waived. See “Sovereign Immunity,”

Joint      State       Government          Commission        (May        1978),       19-20,

http://jsg.legis.state.pa.us/resources/documents/ftp/publications/1978-211-Sovereign%2

0Immunity.pdf (retrieved July 14, 2014) (in addition to constitutional authority in Section

11 for Legislature to direct manner in which Commonwealth may be sued, “strong public

policy dictates” that liability should be capped).

        Obviously, Pennsbury – which is currently protected under Section 8553 from tort

liability in excess of $500,000 in individual cases – purchased its excess insurance

coverage for risks other than lawsuits arising from personal injuries like appellant’s. The

mere purchase of such insurance coverage, aimed at other kinds of risks, does not entitle

appellant to its proceeds as a constitutional matter. Nor does the purchase of such

coverage somehow act as a waiver of the statutory cap. See, e.g., Supler v. School

Dist., 182 A.2d 535 (declining to abolish governmental immunity; rejecting argument that

school district’s purchase of insurance policy effected waiver of immunity).

        More fundamentally, the argument begs the constitutional question: the

assessment and balancing of alternative or conflicting policies to resolve the difficult and


13 Notably, the General Assembly in fact included provisions in the Act which specifically
authorize participation by local agencies in risk-sharing pools, and self-insurance, while at
the same time maintaining the limitation on damages codified in Section 8553. 42
Pa.C.S. § 8564 (liability insurance and self-insurance).



                                      [J-39-2014] - 39
complex questions raised by a tragic situation such as appellant’s are not particularly

amenable to resolution by an appellate court with a limited, fact-specific record, in the

context of a constitutional challenge. We have little difficulty seeing some facial merit in

the interests ably identified from all quarters in this case. Appellant is not an organization

or a lobbyist: she is an injured plaintiff, who suffered a catastrophic injury, who wants the

tortfeasor to take responsibility and make her whole. This is a simply-stated but powerful

position. On the other hand, local agencies and municipalities have very real concerns

about their ability to preserve their financial stability so that they may continue to serve the

public and provide critical services to their citizens, especially their poorest residents.14

That unpredictable and catastrophic losses can wreak financial havoc is another

simply-stated but powerful argument.

       The amicus curiae briefs filed by the City of Philadelphia, the City of Pittsburgh,

Allegheny County, and the Commonwealth give us particular pause before we would

displace the General Assembly’s balancing of these competing concerns.                     The

government entities suggest that the requested elimination of the damages cap codified

in Section 8553 of the Act (and in Section 8528 with regard to the Commonwealth) would

have disastrous financial consequences. According to these amici, the cap provides

some measure of predictability that enables them to plan budgets and provide consistent

services to residents. Even with the cap in place, amici assert, they face a significant

number of claims and exposure. We recognize appellant’s complaint that many of these

assertions are outside the limited record in this case, and we are not in a position to pass

upon their specific accuracy. But, neither do we leave common sense at the courtroom


14 According to amici, 26.2% of Philadelphia residents and 22.5% of Pittsburgh residents
are living with incomes below the poverty line. Brief of the City of Philadelphia, the City
of Pittsburgh, and Allegheny County in Support of Appellee, at 7.




                                       [J-39-2014] - 40
door. Whether the statements in the briefs of twenty-eight interested amici are factually

correct, they are a cautionary tale that this constitutional challenge implicates core public

policy questions, concerning both the propriety and the amount of a statutory damages

cap, that the political branches are better positioned to weigh and balance.

       In any event, it is not difficult to imagine the adverse budgetary consequences for

local agencies of even one multi-plaintiff lawsuit involving severe injuries, like those that

led to the $11 million verdict here, or even multiple deaths, if liability were uncapped.

See, e.g., Smith, supra (forty-four separate actions on behalf of seventy-two claimants

involving property damage, personal injury and death after gas explosion).              The

Commonwealth asserts that removing the cap would essentially “transfer the power of the

purse from elected officials to unelected and unaccountable juries.” Commonwealth

Brief in Support of Appellee, at 4. The statement is dramatic to be sure, but not fanciful.

The Commonwealth notes that the single verdict amount in this case -- $11 million – is as

much or more than the current state General Fund appropriation for: cancer prevention

and treatment; State Police municipal police training, forensic laboratory support,

automated fingerprint identification and gun checks combined; PEMA storm disaster

relief; the State Ethics Commission; all state senators’ salaries and expenses combined;

the   Pennsylvania     Human     Relations    Commission;     and    the   Capitol   Police.

Commonwealth Brief at 31 (citing Pennsylvania Office of the Budget, “2013-14 Enacted

Budget – Line Item Appropriations” (June 2013), available at www.budget.state.pa.us

(Past Budgets)).

       The prospect that a single large damages award in a negligence case filed against

a public tortfeasor – such as a school district – could spell financial ruin for that public

defendant is not a new one. As early as 1888, this Court ruled that a public school

student who was severely burned as the result of the school janitor’s undisputed




                                      [J-39-2014] - 41
negligence, was not entitled to recover damages from the school district, as the district

was funded by “public money,” should properly be considered “a great public charity,” and

thus be immune from suit.       Ford v. School District, 15 A. at 815-16.        The Court

reasoned:

      [T]o make school-districts responsible for the misfeasance of their officers
      would, in many cases, prove injurious, if not destructive, to the public
      welfare. A weak and poor district is saddled with a heavy bill of
      damages,—in this case, for instance, because a child has been burned
      through the negligence of the janitor; in another, perhaps, because there
      has been no fire, and a pupil's limbs have been frozen, or because the
      house was open, and it has caught cold; it has been maltreated by the
      teacher, or has contracted spine disease, because of improper seats,
      etc.,—and, as a consequence, the schools must be closed, and the
      ordinary taxation, perhaps for years, together with the state appropriation,
      must be applied to the payment of the bill. The rule heretofore has been
      that individual advantage must give way to the public welfare; but the
      proposition of the plaintiff is to make individual grievance override the public
      good,—make the public funds the primary source of individual
      compensation. A child has been injured by the negligence of the school
      janitor; therefore stop the schools, and appropriate the money of the state
      and district for the purpose of compensating the child and its parents. This
      is certainly running the idea of individual compensation to the last degree of
      absurdity. It is an attempt to open a new field for this kind of
      litigation,—profitable, indeed, to the individual, but ruinous to the public;
      hence one that we are not disposed to encourage.
Id. The Court’s language, though antiquated and insensitive -- particularly under a tort

scheme offering no recovery at all – is again a reminder of the larger policy questions

implicated by the constitutional question posed.

      Appellant seeks a holding from this Court that the statutory damages cap must be

stricken because it unlawfully discriminates against plaintiffs who sue public tortfeasors,

and equal protection principles require that such plaintiffs should instead be permitted to

seek unlimited damages against those tortfeasors, as if they were suing private entities.

For the reasons we have explained, appellant’s position is difficult to sustain because she

essentially asks this Court to make uniquely legislative judgments, such as whether it is



                                     [J-39-2014] - 42
“better” to provide for unlimited governmental liability in tort to individual private parties, or

is it “better” to limit such liability in order to avoid curtailing services on which the public as

a whole depends for its health, safety and welfare. In such cases, the scale is “weighted

on both sides with legitimate interests” and “this recognition should [end] the inquiry.”

Reichley v. North Penn Sch. Dist., 626 A.2d 123, 129 (Pa. 1993) (internal quotation marks

omitted). See also Love v. City of Philadelphia, 543 A.2d 531, 533 (Pa. 1988) (“The

juridicial [sic] concept that where there is a wrong there must be a right often depends on

the wisdom and large responsibility of the legislature. What rights for what wrongs are

generally their prerogative and apportioned in the exercise of their many responsibilities

and competing needs.”). While we have genuine sympathy for appellant’s individual

situation (and particularly in light of the fact that the amount of the cap has not been

increased, or adjusted for inflation, in the thirty-six years since its adoption), we conclude

that appellant has not shown that the classification created by the Section 8553

damages cap – distinguishing between plaintiffs suing public tortfeasors and those suing

private defendants – clearly, palpably and plainly violates equal protection principles.

The protection provided by the cap for local government entities is closely related to

important and legitimate legislative objectives, perhaps even moreso today than at the

time Smith and Carroll were decided in the 1980s.15

       Outside the constitutional context, to the extent genuine questions might be raised

regarding the amount of the cap, we note that such questions require detailed study and

15  Various amici provide support for the general proposition that numerous Pennsylvania
cities are financially distressed due to increased costs and reduced revenues. See, e.g.,
Brief of the Commonwealth, at 28 (there are currently twenty-one financially distressed
municipalities in Pennsylvania, including Pittsburgh, Scranton, Harrisburg, Altoona and
Johnstown); Brief of County Commissioners Association, et al. at 8-9 (“no state is more
representative of this national trend than the Commonwealth of Pennsylvania, where
numerous local governments have been burdened with rising costs, looming pension
liabilities, and ever-shrinking finances”).



                                        [J-39-2014] - 43
analysis of all relevant policy factors in a complicated balancing act that is properly

addressed to the General Assembly. See, e.g., Program Admin. Serv. Inc. v. Dauphin

Cty. Gen. Auth., 928 A.2d 1013, 1017-18 (Pa. 2007) (“In particular, it is the Legislature's

chief function to set public policy and the courts’ role to enforce that policy, subject to

constitutional limitations.”); Reichley v. North Penn, 626 A.2d at 129 (“The adversarial

judicial system is not an appropriate forum for analyzing whether this legislation works

well or poorly, as intended or in ways unforeseen.         If a statute does not work as

expected, the legislature is the appropriate body to make the judgment and enact

corrective legislation.”).   As we have noted, the Act was adopted by the General

Assembly after it established a task force consisting of judges, various Commonwealth

departments, trial attorneys and other citizens “to ‘conduct a thorough review and

analysis of the benefits and costs accruing from a statutory revision or abolition of the

sovereign immunity defense.’”          General Assembly of the Commonwealth of

Pennsylvania, Joint State Government Commission, Sovereign Immunity (May 1978), 2

(quoting House Resolution No. 226 of 1974).               The task force, after making

recommendations regarding proposed legislation that would become the Act,

acknowledged that subsequent experience under the proposed regime of “uniform

maximums of recovery” would be “beneficial in future legislative consideration of

limitations” on damages. Id. at 20. In fact, after more than three decades of such

experience, it appears that the General Assembly is currently considering legislation to

increase the damages cap at Section 8553(b) to $10,000,000. See H.B. 2032, Reg.

Sess. of 2014 (Pa. Feb. 19, 2014) (introduced and referred to Committee on Judiciary on

February 19, 2014). But, with regard to the discrete justiciable equal protection question

posed here, which turns on the classification of public vs. private tortfeasors, we hold that

Section 8553’s existing limitation on damages passes constitutional muster.




                                      [J-39-2014] - 44
           We must now consider whether the Section 8553 damages cap violates other

provisions of the Pennsylvania Constitution as argued by appellant. As an interpretive

matter, we have noted that:

       the polestar of constitutional analysis undertaken by the Court must be the
       plain language of the constitutional provisions at issue. A constitutional
       provision requires unstrained analysis, “a natural reading which avoids
       contradictions and difficulties in implementation, which completely
       conforms to the intent of the framers and which reflects the views of the
       ratifying voter.” Jubelirer v. Rendell, 598 Pa. 16, 953 A.2d 514, 528 (2008);
       Commonwealth ex rel. Paulinski v. Isaac, 483 Pa. 467, 397 A.2d 760, 766
       (1979). Stated otherwise, the constitutional language controls and “must
       be interpreted in its popular sense, as understood by the people when they
       voted on its adoption.” Stilp v. Commonwealth, 588 Pa. 539, 905 A.2d
       918, 939 (2006); Ieropoli v. AC&S Corp., 577 Pa. 138, 842 A.2d 919, 925
       (2004).
In re Bruno, __ A.3d __, __ 2014 WL 4915942 at *17 (Pa. 2014).



                                  C. Article III, Section 18



       Appellant claims that the cap violates the plain language of Article III, Section 18,

because it imposes a limitation on the amount of damages that can be recovered. Article

III, Section 18 provides:


       The General Assembly may enact laws requiring the payment by
       employers, or employers and employes jointly, of reasonable compensation
       for injuries to employes arising in the course of their employment, and for
       occupational diseases of employes, whether or not such injuries or
       diseases result in death, and regardless of fault of employer or employe,
       and fixing the basis of ascertainment of such compensation and the
       maximum and minimum limits thereof, and providing special or general
       remedies for the collection thereof; 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, and in case of
       death from such injuries, the right of action shall survive, and the General
       Assembly shall prescribe for whose benefit such actions shall be


                                     [J-39-2014] - 45
       prosecuted. No act shall prescribe any limitations of time within which
       suits may be brought against corporations for injuries to persons or
       property, or for other causes different from those fixed by general laws
       regulating actions against natural persons, and such acts now existing are
       avoided.

PA. CONST. art. III, § 18 (emphasis added). As stated earlier, this Court upheld the

damages cap against an identical claim in Smith v. Philadelphia. See also Lyles v.

Commonwealth, 516 A.2d 701 (limitation on damages in tort cases against

Commonwealth does not violate Article III, Section 18 of Pennsylvania Constitution).

The Smith Court considered the history of Section 18, noting that it was adopted in 1874

in response to anticipated legislative “overreaching” by private corporations. 516 A.2d at

309. Appellant has not forwarded any persuasive basis for us to disturb this analysis.


           Additional support for this historical explanation of the purpose of Section 18 is

found in Singer v. Sheppard, 346 A.2d 897 (Pa. 1975), where the Court upheld the

No-Fault Motor Vehicle Insurance Act’s limitation on tort recovery against the plaintiff’s

claim that those limitations violated Section 18’s proscription against limits on the amount

of recovery for personal injuries.     The Singer Court recognized that Section 18’s

predecessor, Article III, Section 21, of the Constitution of 1874, was adopted in direct

response to an 1868 statute that “limited the maximum amount recoverable by a plaintiff

in a negligence action against a common carrier to $3,000 for personal injuries and

$5,000 for injuries resulting in death.”    346 A.2d at 900.       See, e.g., Thirteenth &

Fifteenth Sts. Pass. R. Co. v. Boudrou, 1880 WL 13607 *6 (Pa. 1880) (amount of

damages recoverable by plaintiff due to railroad’s negligence was unconstitutionally

limited by statute to $3000; limitation of recovery to sum less than actual damage “is

palpably in conflict with the right to remedy by a due course of law”). In 1915, Section 21


                                     [J-39-2014] - 46
was amended to allow for the enactment of a new Workmen’s Compensation Act, which

was expressly permitted to provide limits on recovery against employers, and in 1967,

Section 21 was renumbered as Article III, Section 18. Singer, 346 A.2d at 900-01. The

analysis in Smith is consistent with the precepts that we must consider the meaning of a

constitutional provision “in light of the evil intended to be remedied by its adoption,” Lewis

v. Hollohan, 103 Pa. 425, 430 (1883), and that we must consider the intent of the framers

and the views of the “ratifying voter.” Jubelirer, 953 A.2d at 528.


           In both Singer and Smith, this Court explained that the specific evil aimed at by

now-Section 18 was the inappropriate influence on legislation exercised by common

carriers, i.e., railroad companies, and in the broader sense, powerful private corporations

with an incentive to seek to limit the damages recoverable through lawsuits arising from

accidents. Moreover, the final sentence of Section 18 yields further support for this

position, as it ensures that any statute of limitations on suits against corporations must

be the same as, i.e., no shorter than, the limitations period on actions against natural

persons. See PA. CONST. art. III, §18 (“No act shall prescribe any limitations of time

within which suits may be brought against corporations for injuries to persons or property,

or for other causes different from those fixed by general laws regulating actions against

natural persons. . . .”); Lewis, supra (purpose of Article III, Section 21 was to nullify

legislation limiting amount to be recovered for injuries or death as well as limiting time

within which suits could be brought against corporations; any time limitations applicable

to suits against corporations must be same as those against natural persons); In re Grape

Street, 103 Pa. 121, 124 (1883) (“The design of this part of the Constitution is sufficiently

obvious; it is to put the citizen and corporations on the same general plane of right when



                                      [J-39-2014] - 47
they come into a court of justice, and thus, in part, at least, to break down the invidious

distinction theretofore made, by the legislature between natural persons and

corporations.”); Malenkaitus v. Horwitz, 47 Pa. D. & C. 643, 648 (Lackawanna Cty. 1943)

(Article III, Section 21 prohibition applies solely to private corporations, so law requiring

timely notice of lawsuit against City of Scranton does not violate provision).


           It is true that the language of Section 18 broadly states that limits on recovery

such as those enacted by the Workmen’s Compensation Act shall apply in “no other

cases,” and appellant argues that this language should be read literally and in all

contexts. But, as the Smith Court explained, at the time Section 18 was drafted – and for

more than 100 years afterward, until Ayala and Mayle were decided – government

entities enjoyed common law tort immunity, and so “the Framers would have had no

occasion to apply the prohibition against limiting damages to government.” Smith, 516

A.2d at 309.


           We also reject appellant’s argument that the Court’s recent decision in

Robinson Twp., 83 A.3d 901, commands a different result. First, the Court in Robinson

Twp. considered the validity of Act 13 of 2012, comprehensive legislation which amended

the Pennsylvania Oil and Gas Act, in light of the Environmental Rights Act, Article I,

Section 27 of the Pennsylvania Constitution.16 The case did not involve the Tort Claims

Act or a challenge under Section 18. Second, the proposition for which appellant cites


16 Article I, Section 27 provides: “The people have a right to clean air, pure water, and to
the preservation of the natural, scenic, historic and esthetic values of the environment.
Pennsylvania's public natural resources are the common property of all the people,
including generations yet to come. As trustee of these resources, the Commonwealth
shall conserve and maintain them for the benefit of all the people.”



                                      [J-39-2014] - 48
Robinson Twp. (a proposition representing a plurality view) does little to advance her

cause, since the plurality also acknowledged that we may consider factors other than the

plain language of a constitutional provision in determining whether legislation is

unconstitutional. 83 A.3d at 945-46 (“If the words of a constitutional provision are not

explicit, we may resort to considerations other than the plain language to discern intent,

including, in this context, the occasion and necessity for the provision; the circumstances

under which the amendment was ratified; the mischief to be remedied; the object to be

attained; and the contemporaneous legislative history.”).          Moreover, “[a] specific

provision will prevail over a general principle found elsewhere but, because the

Constitution is an integrated whole, we are cognizant that effect must be given to all of its

provisions whenever possible.” Id. at 946.


           Reading Article III, Section 18 together with Article I, Section 11 corroborates

the propriety of this Court’s prior construction of Section 18. As already stated above,

and as further discussed below, Section 11 expressly provides the General Assembly the

power to limit the damages recoverable in certain lawsuits, and Section 18 does not

dictate a different result. PA. CONST. art. I, §11 (“Suits may be brought against the

Commonwealth in such manner, in such courts and in such cases as the Legislature may

by law direct.”); Smith, 516 A.2d at 309-10 (Section 18 does not undermine General

Assembly’s authority under Section 11 to limit amount of recovery in tort actions against

“governmental entities,” or abolish those actions completely); Freezer Storage, Inc. v.

Armstrong Cork Co., 382 A.2d 715, 721 (Pa. 1978) (“The Legislature has not limited the

recovery available under a cause of action, but eliminated that cause of action altogether

in certain cases. It is senseless to hold that, although Article I, Section 11 authorizes



                                      [J-39-2014] - 49
the Legislature to abolish a cause of action, any such abolition is nonetheless void

because it constitutes a diminution of recovery for a harm inflicted in violation of Article III,

Section 18. . . .”). See also Joint State Government Commission, Sovereign Immunity,

19 (Article III, Section 18 must be read in light of Commonwealth’s prior immunity and with

Legislature’s specific constitutional authority from Article I, Section 11 to waive that

immunity in such manner as it directs; General Assembly thus “may affix any limitations it

chooses to its waiver”). We therefore reject appellant’s invitation to disavow our prior

readings of Article III, Section 18.


                                       D. Article I, Section 11



       Appellant argues that the statutory damages cap violates Article I, Section 11.

Section 11 provides:

       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. I, § 11.        Appellant correctly asserts that this “remedies clause”

guarantees “open courts” as a general proposition, but it is clear from a reading of the

entire provision that the guarantee is not without limits. Indeed, Section 11 expressly

authorizes the General Assembly to “direct” exactly how the Commonwealth may be

subjected to suit. “This concluding sentence of Article I, Section 11 is an integral,

unequivocal and controlling portion of the Constitutional provision upon which plaintiff

would rely,” and pursuant to that sentence, this Court has upheld the Act’s exceptions to

generalized governmental immunity. Carroll, 437 A.2d at 396. See also 1 Pa.C.S. §



                                         [J-39-2014] - 50
2310 (pursuant to Section 11, it is General Assembly’s intent that Commonwealth, its

officials and employees shall remain immune to suit except where immunity is specifically

waived). As discussed in more detail above, the Carroll Court expressly held that the

Act’s limitations on liability do not violate Section 11, and this holding is in line with prior

cases which examined the General Assembly’s modification or outright abolition of

well-established causes of action, and upheld those particular legislative adjustments.

See Freezer Storage, 382 A.2d at 720-21 (societal conditions occasionally require law to

change in way that denies plaintiff cause of action available in earlier days; Legislature

did not violate Section 11 by redefining rights of builders, customers, and third parties by

establishing twelve-year statute of repose); Singer, 346 A.2d at 903 (no one has vested

right in continued existence of immutable body of negligence law). Contrast Ieropoli, 842

A.2d at 930 (where plaintiffs’ causes of action accrued before enactment of statute

eliminating those causes of action, statute's application to plaintiffs’ case is

unconstitutional under Article 1, Section 11).

       Appellant also argues that, because Section 11 is part of the Declaration of Rights

contained in Article I of the Pennsylvania Constitution, reading the open courts provision

as “taking away individual rights” is a misapprehension of the purpose of Article I.

Appellant’s Brief at 45 (citing Robinson Twp., 83 A.3d at 948-49).            But, appellant’s

argument is unavailing because, unlike other provisions in Article I – such as Section 27,

the Environmental Rights Amendment, which was at issue in Robinson Twp. – Section 11

expressly includes a limitation on the individual right to “open courts” and remedies

therein. Thus, Section 11 itself authorizes the Legislature to enact laws that direct the

way in which a plaintiff might pursue her right to a judicial remedy against the

Commonwealth. Moreover, the Carroll Court explained that the Legislature’s authority

granted in Section 11 with regard to suits against the Commonwealth “surely” extends to




                                       [J-39-2014] - 51
directing the manner in which political subdivisions may be sued as well. Carroll, 437

A.2d at 396.      See generally Commonwealth v. Moir, 49 A. 351, 352 (Pa. 1901)

(“Municipal corporations are agents of the state, invested with certain subordinate

governmental functions for reasons of convenience and public policy. They are created,

governed, and the extent of their powers determined, by the legislature, and subject to

change, repeal, or total abolition at its will.”). See also Mascaro, 523 A.2d at 1123

(expressed legislative intent of Act’s limited exceptions to immunity is “to insulate political

subdivisions from tort liability”).17

       The General Assembly therefore acted within its constitutional authority provided

in Article I, Section 11, when it adopted legislation re-establishing governmental

immunity, and providing for the limited waiver of that immunity, in Chapter 85 of the

Judicial Code, entitled “Matters Affecting Government Units.” Chapter 85 includes all

provisions regarding the Commonwealth’s immunity, 42 Pa.C.S. §§ 8521-8528, as well

as the immunity of “local parties,” 42 Pa.C.S. §§ 8541-8564. As this Court held in Smith,

the General Assembly also properly acted within its Section 11 authority when it adopted


17 We are aware that in Specter v. Commonwealth, 341 A.2d 481, 482 (Pa. 1975), the
Court ruled that the tort “immunity enjoyed by the Commonwealth” pursuant to Article I,
Section 11, did not extend to the Pennsylvania Turnpike Commission, which the Specter
Court determined was “separate and apart from the Commonwealth.” Id. at 493.
Specter was based upon Ayala’s holding that sovereign immunity did not apply to political
subdivisions and governmental entities other than the Commonwealth. Specter was
thus obviously undermined when the General Assembly adopted the statutory regime
reflected in the Act, which expressly applies tort immunity to political subdivisions, with
certain enumerated exceptions. 42 Pa.C.S. §§ 8541-8553. See also 71 P.S. § 732-102
(defining “Commonwealth agency” to include “independent agencies” like Pennsylvania
Turnpike Commission); In re Thirty-Third Statewide Investigating Grand Jury, 86 A.3d
204 (Pa. 2014) (undisputed that Pennsylvania Turnpike Commission is Commonwealth
agency; Commission employees could not invoke attorney-client privilege to preclude
Commonwealth’s Office of Attorney General access to Commission documents during
grand jury investigation of Commission’s operation).



                                        [J-39-2014] - 52
the damages cap in actions against local governments in Section 8553 of the Act. 516

A.2d at 309-10. Appellant has not advanced any convincing argument why Smith should

be overruled, or that the cap clearly, palpably, and plainly violates Section 11.



                                  E. Separation of Powers


       Article V, Section 1 of the Pennsylvania Constitution provides that the “judicial

power of the Commonwealth shall be vested in a unified judicial system. . . .” Appellant

argues that, because remittitur is an available, discretionary judicial tool, applicable only

in cases where a judge determines that a jury’s verdict is excessive, the damages cap

improperly acts as a “legislative remittitur,” and as a result, the General Assembly has

overstepped its bounds into the judiciary’s territory.

       Appellant is correct that, in Pennsylvania, a party can file a motion for remittitur or

reduction of the amount of a jury’s verdict, and the decision on a requested remittitur is

addressed to the discretion of the trial court. See Pa.R.C.P. No. 227.1(a)(4) (after trial

and upon written motion for post-trial relief filed by any party, court may affirm, modify or

change the decision). A remittitur or “[j]udicial reduction of a jury award is appropriate

only when the award is plainly excessive and exorbitant. The question is whether the

award of damages falls within the uncertain limits of fair and reasonable compensation or

whether the verdict so shocks the sense of justice as to suggest that the jury was

influenced by partiality, prejudice, mistake, or corruption.” Haines v. Raven Arms, 640

A.2d 367, 369 (Pa. 1994). The matter is “peculiarly within the discretion of the trial court

and will not be reversed unless an abuse of discretion or an error of law has been




                                      [J-39-2014] - 53
committed.” Id. (quoting Scaife Co. v. Rockwell-Standard Corp., 285 A.2d 451, 456 (Pa.

1971)).

       Appellant is also correct that “the executive, legislative, and judicial branches of

government are equal and none should exercise powers exclusively committed to

another branch.” Jefferson Cty. Court Appointed Employees Ass’n v. Pa. Labor Rels.

Bd., 985 A.2d 697, 702 n.8 (Pa. 2009) (citing Beckert v. Warren, 439 A.2d 638, 642

(1981)).   But, appellant’s argument that the statutory damages cap operates as a

mandatory remittitur improperly imposed upon her court case by the legislative branch is

meritless. The concept of a discretionary remittitur – granted by a judge after a trial and

jury verdict rendered on a given set of facts – is totally different from the application of the

damages cap codified at Section 8553. For one thing, “judicial” acts are those which

determine the existing law in relation to existing facts, and which apply the law to the

subject matter before the court, while a “legislative” act is a determination of what the law

will be in the future.     See, e.g., W HITE, COMMENTARIES         ON THE   CONSTITUTION     OF

PENNSYLVANIA, 297. See also Evans v. Alaska, 56 P.3d 1046, 1056 (Alaska 2002)

(statutory cap on damages is not remittitur; it is instead general alteration applied to all

cases, and is not case- and fact-specific like remittitur).

       As we have explained, the General Assembly has the authority under Article I,

Section 11 to define the manner in which governmental entities may be sued in tort, and it

has determined that such lawsuits may proceed in limited circumstances, subject to a

uniform limitation on damages. In adopting the damages cap, the General Assembly did

not usurp the judiciary’s exclusive, discretionary authority to grant remittitur in individual




                                       [J-39-2014] - 54
cases; it set a statutory maximum recovery in all negligence cases against public

tortfeasors.

       This Court would encroach upon the Legislature's ability to guide the
       development of the law if we invalidated legislation simply because the rule
       enacted by the Legislature rejects some cause of action currently preferred
       by the courts. To do so would be to place certain rules of the “common
       law” and certain non-constitutional decisions of courts above all change
       except by constitutional amendment. Such a result would offend our
       notion of the checks and balances between the various branches of
       government, and of the flexibility required for the healthy growth of the law.

Freezer Storage, 382 A.2d at 721. Cf. Seitzinger v. Commonwealth, 25 A.3d 1299,

1304-07 (Pa. Cmwlth. 2011) (separations of powers doctrine violated if legislative action

impairs independence of judiciary in administration of justice; no violation where

Legislature had authority through Supreme Court’s rules permitting reasonable counsel

fees to enact limitation on contingent fees for attorneys in workers’ compensation cases).


       Notably, the General Assembly’s task force, which studied the viability of a limited

waiver of governmental immunity, expressly considered and rejected remittitur as a

possible alternative to legislatively capping damages in such cases: “While it could be

argued that the court’s power to reduce excessive verdicts would act as a restraint, the

effect of relying on judicial oversight would be to transfer the exclusive authority over the

public purse from the Legislature to the judiciary.” Joint State Government Commission,

Sovereign Immunity, 20.      Appellant’s argument is creative, but clearly remittitur is

distinguishable from the statutory cap, for separation of powers purposes, and the cap is

specifically designed to mandate a limitation even where a judge might decline to apply a

discretionary remittitur. We find no violation of the separation of powers in the Act’s cap

on tort damages.



                                    F. Article I, Section 6


                                      [J-39-2014] - 55
       In a related, creative argument, appellant claims that application of the damages

cap to reduce her jury’s verdict violated her constitutional right to a jury trial. 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.” Appellant’s jury trial argument fails

for multiple reasons.

       This particular language first appeared in the Constitution of 1790, and has

remained unchanged, although it originally appeared at Article 9, Section 6.             See

GORMLEY, et. al., THE PENNSYLVANIA CONSTITUTION: A TREATISE ON RIGHTS AND LIBERTIES

(2004), 235 (Rhoades, Jessica B., Trial By Jury, § 9.2). Notably, at that time – that is,

“heretofore” – there was no common law right to a jury trial in proceedings against the

Commonwealth, as the state was immune from suit. See Ligat v. Commonwealth, 19

Pa. 456 (1852) (“A sovereign state is not liable to an action at law against her consent,

and the right of trial by jury has, therefore, no existence in such a case.”) (emphasis in

original); W HITE, COMMENTARIES    ON THE   CONSTITUTION   OF   PENNSYLVANIA, 69-70 (in any

case where state allows itself to be sued it can fix mode of trial without jury, since at

common law state could not be sued at all).

       Appellant attempts to dispute this point, declaring that a “Pennsylvanian was

allowed to sue a local government unit for negligence in 1790.” Appellant’s Brief at 54.

Appellant argues that immunity as described in Russell v. Men of Devon – the law in

England at the time – was not actually applied in a Pennsylvania case until 1888, i.e., in

Ford, as discussed earlier. But, in Part IV.A above, we have already noted that the

status of immunity in the nineteenth century was more varied and complicated than

appellant’s Ford-based focus.      Moreover, in making this point, appellant does not

actually argue that there was a right to trial by jury in all negligence cases against a local




                                      [J-39-2014] - 56
government in 1790, even if the broader concept of immunity had not yet been adopted in

Pennsylvania. Appellant relies instead on general statements in much later cases that it

is “the exclusive province of the jury” to hear evidence and decide damages in negligence

cases, and broadly declares that the “right to sue governmental units for negligence

includes the right to have a jury determine damages.” Appellant’s Brief at 54-55 (citing

Doe v. Raezer, 664 A.2d 102, 105 (Pa. Super. 1995) (reversing trial court’s grant of

remittitur; judicial reduction of jury award appropriate only if award is plainly excessive

and exorbitant) (superseded in part on other grounds by Vogelsberger v.

Magee-Womens Hosp., 903 A.2d 540 (Pa. Super. 2006)) and Matheny v. West Shore

Country Club, 648 A.2d 24 (Pa. Super. 1994) (affirming denial of motion for additur or new

trial; jury’s award of damages not so low as to “shine forth like a beacon”).

       Appellant also relies on Dean v. New Milford Twp., 1843 WL 5096, where the Court

allowed an action to go forward against an incorporated county for damages caused by

negligent maintenance of a roadway. But, instrumental to the Court’s decision in Dean

was the fact that the defendant municipality had a fund out of which to pay damages to the

plaintiff, and on this basis, the Dean Court distinguished earlier cases which had

disallowed such lawsuits. Pennsbury also counters appellant’s argument by citing other

pre-Dean cases where the Court rejected attempts to sue local government entities.

See, e.g., Mayor v. Randolph, 1842 WL 4889 *3 (Philadelphia as municipal corporation

had authority to stop creek’s course when grading streets; plaintiffs whose property was

flooded as result could not inquire into motives or purpose for city’s doing so); Green v.

Borough of Reading, 1840 WL 3772 *5 (incorporated borough with officers authorized to

repair streets not subject to suit regarding manner of repairs; “plaintiff will find he has not

been injured” because “advantage to the whole town soon raises property in every part of

it, and is to the advantage of every inhabitant”). These decisions indicate that the right to




                                      [J-39-2014] - 57
sue local governments was considered, and immunity applied, on a case-by-case basis in

early years, irrespective of whether a jury trial was allowed. See, e.g., Mayor, supra

(court erred in allowing jury to determine municipality’s purpose in stopping up creek).

Moreover, the cases also recognize a broad principle – quite relevant here – that

“individual advantage must give way to the public welfare,” and that an “individual

grievance” may not “override the public good” and “make the public funds the primary

source of individual compensation.” Ford, 15 A. at 815-16. See also Green, supra

(advantage to whole town of improved public streets is to advantage of every inhabitant).

The bottom line is that the right to a jury trial as heretofore is not so clear and simple as

appellant would have it.

       In any event, appellant’s argument based on her right to a jury trial is obviously

misdirected. We have stated generally that Article 1, Section 6 “does not require an

absolutely unfettered right to trial by jury.” Parker v. Children’s Hospital, 394 A.2d 932,

938 (Pa. 1978) (statute requiring that medical malpractice cases first be subject to

arbitration before appeal de novo with jury trial did not violate Section 6; Section 6

guarantee of right to jury trial should not be construed in such manner as would exclude

any other method for disposing of disputes). What is most important is that the right to a

jury trial “must not be burdened by the imposition of onerous conditions, restrictions or

regulations which would make the right practically unavailable.” Application of Smith,

112 A.2d 625, 629 (Pa. 1955) (Court upheld statutory scheme which mandated

compulsory arbitration for certain minor cases, and then allowed jury trial upon appeal

from decision of arbitrators; Court found that statute did not create “onerous” burden on

right to jury trial).18 Appellant relies on the reference in Application of Smith to “onerous”

18 Without striking down the compulsory arbitration statute, the Court also suggested that
the Lancaster County fee for the payment of arbitrators was too high for very small cases:
“The rule adopted in Lancaster County which is here under consideration provides for
(continuedK)

                                      [J-39-2014] - 58
conditions and argues that the statutory damages cap places just such a condition and

restriction on her right to a jury trial, making the right practically unavailable to her. But,

this is simply not so. The damages cap does not present a condition or restriction on

appellant’s right to have a jury hear her case; rather, the burden lies in the limited amount

of recovery allowed, and that is obviously not the same thing. Successful plaintiffs are

often limited in their ability to recover the full amount of a jury’s award for many different

reasons – a defendant may simply be judgment-proof, for example – but this practical

reality has nothing to do with the plaintiff’s right to seek to have the merits of her cause

determined by a jury, rather than some other process. This Court has struck down

onerous procedural barriers to the exercise of the jury trial right, but that is quite a different

matter from a substantive limit on the damages ultimately recovered – following a

full-blown jury trial. See, e.g., Mattos v. Thompson, 421 A.2d 190 (Pa. 1980) (statutory

arbitration scheme first upheld in Parker later determined to cause lengthy delays which

present onerous conditions and restrictions which impose oppressive burden on that

right).

          The decision in Mishoe v. Erie Ins. Co., 824 A.2d 1153 (Pa. 2003) is instructive.

There, the Court held that there is no constitutional right to a jury trial in cases involving

bad faith claims against insurers under 42 Pa.C.S. § 8371, because there was no bad

faith contract claim against insurers recognized at common law at the time Article 1,


(Kcontinued)
compensation to the arbitrators in the sum of $25 each, or a total of $75, and the
necessity of paying that amount as a condition for the right to appeal would seemingly
operate as a strong deterrent, amounting practically to a denial of that right, if the case
should involve only, as in the present instance, as little as $250. Therefore this rule, as
well as the rules adopted or to be adopted by the courts of common pleas of other
counties, should take cognizance of this fact and should provide for a lower rate of
compensation where only a comparatively small claim is involved.” 112 A.2d at 630.




                                        [J-39-2014] - 59
Section 6 was adopted. In so holding, the Mishoe Court noted that the purpose of the

constitutional provision “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.” Id. at 1160 (quoting Haines v.

Levin, 51 Pa. 412, 414 (Pa. 1866)). The Court explained that, under Article 1, Section 6,

“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.” 824

A.2d at 1160. See also Van Swartow v. Commonwealth, 24 Pa. 131, 1854 WL 6430 *3

(1854) (statute creating summary offense for sale of spirits on Sabbath not

unconstitutional for failing to provide jury trial; Legislature may create new offenses not

triable by jury in 1790 and prescribe non-jury disposition). The Mishoe Court further

noted that, even where juries render a verdict on damages, courts still maintain “judicial

control over such awards by way of remittitur.” Id. at 1159. See also Germantown Sav.

Bank v. City of Philadelphia, 512 A.2d 756, 760 n.5 (Pa. Cmwlth. 1986), aff’d per curiam,

535 A.2d 1052 (Pa. 1988) (Section 8553(d) of Act, which provides for reduction of

damages verdict by amount received from insurance proceeds, does not violate

constitutional right to jury trial).

       Even if it is assumed that the right to a jury trial in negligence cases filed against

governmental entities existed in the “heretofore” described in Article I, Section 6, such

that it must “remain inviolate” now, the full-blown jury trial appellant demanded and

received was not impeded by the damages cap. What was affected was the ultimate

recovery post-verdict, which was not a function of the trial here being by jury. As stated,

that effect of the cap exists in all such cases – whether resolved by judgment motion, jury




                                       [J-39-2014] - 60
trial, bench trial, or negotiated settlement – but the cap did not alter the availability, or

contours of, a jury trial, any more than a jury trial against a judgment-proof defendant

could be said to impair the jury trial right. Appellant has not met her burden of

establishing that the Act’s damages cap clearly, palpably and plainly violates Article I,

Section 6.



                                      V.     Conclusion


             Pennsylvania courts have struggled with the difficult questions raised in this

appeal – and the attendant policy implications – since the very beginnings of our common

law system. The facts here are tragic, involving a school student who suffered grievous

injuries caused by the uncontested negligence of the school district’s employee. But, the

circumstances are not unprecedented, and the lower courts did not err in relying on our

prior cases to uphold the legislation at issue, as against the present constitutional

challenges. Moreover, the conclusion that the General Assembly is in the better position

than this Court to address the complicated public policy questions raised by the larger

controversy has substantial force. Accordingly, we uphold the limitation on damages

recoverable under Section 8553(b) of the Act, and therefore affirm the order of the

Commonwealth Court.


       Order affirmed. Jurisdiction relinquished.



       Former Justice McCaffery did not participate in the decision of this case.




                                      [J-39-2014] - 61
      Messrs. Justice Saylor, Eakin and Baer, Madame Justice Todd and Mr. Justice

Stevens join the opinion.



      Mr. Justice Baer files a concurring opinion in which Madame Justice Todd and Mr.

Justice Stevens join.




                                  [J-39-2014] - 62
