struck by a bus owned and operated by the Port Authority of Allegheny County (“Port

Authority”). As required by statute, the trial court reduced the verdict to $250,000.00

because the Port Authority is a Commonwealth agency. See 42 Pa.C.S. § 8528(b)

(providing that “[d]amages arising [against the Commonwealth] 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”).1

       As explained infra, it has been my longstanding view that statutory caps of this

nature, enacted approximately forty years ago, should be revisited and revised by the

General Assembly to insure that residents of the Commonwealth receive fair

compensation for injuries arising from the tortious conduct of a governmental entity. As

each year passes, stagnant statutory caps fail to compensate victims of negligence

adequately and grow ever more restricting of a plaintiff’s ability to exercise his or her right

to a jury trial as guaranteed by Article I, Section 6 of the Pennsylvania Constitution and

the Seventh Amendment to the United States Constitution.2 While there is no challenge

to the statutory cap in the instant appeal, this case provides an excellent example of why


1 A similar damages cap is included in Subsection 8553(b) of the Tort Claims Act with
regard to tort claims against local agencies, providing that damages “shall not exceed
$500,000 in the aggregate.” 42 Pa.C.S. § 8553(b).
2 Article I, Section 6 of the Pennsylvania Constitution, entitled “Trial by jury,” provides, in
relevant part, that “[t]rial by jury shall be as heretofore, and the right thereof remain
inviolate.” PA. CONST., art. I, § 6.
The Seventh Amendment to the United States Constitution, entitled “Trial by jury in civil
cases,” provides:
       In Suits at common law, where the value in controversy shall exceed twenty
       dollars, the right of trial by jury shall be preserved, and no fact tried by a
       jury, shall be otherwise re-examined in any Court of the United States, than
       according to the rules of the common law.

U.S. CONST., amend. 7.


                    [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 2
the Legislature should take action to elevate Pennsylvania’s statutory caps to correspond

with contemporary standards of living.

         This is not the first time that I have expressed this sentiment. Nearly five years

ago, we rendered a decision in Zauflik v. Pennsbury School District, 104 A.3d 1096 (Pa.

2014). There, the plaintiff suffered severe injuries, including the amputation of her leg,

when a school bus accelerated out of control and struck twenty students. The plaintiff

sued the Pennsbury School District, who owned and operated the bus and received a jury

verdict of more than $14 million, which was molded to the $500,000.00 cap for local

agencies set forth at 42 Pa.C.S. § 8553(b). See infra at 2 n.1. On appeal to this Court,

the plaintiff presented various constitutional challenges to the statutory cap, including a

contention that the cap violated her right to a jury trial as guaranteed by Article I, Section

6 of the Pennsylvania Constitution. This Court upheld the statutory cap, finding that the

plaintiff did not demonstrate that the cap clearly, palpably, and plainly violated the

constitution.

         In my concurring opinion in Zauflik, I envisioned a scenario whereby a personal

injury victim, based upon a developed record, could establish that the statutory cap on

damages ($500,000.00 in Zauflik as the case was against a local agency; $250,000.00

here as the case is against a Commonwealth agency) violates the plaintiff’s constitutional

right to a jury trial by creating an onerous procedural barrier to that right.3          The

concurrence relied upon this Court’s decision in Application of Smith, 112 A.2d 625 (Pa.

1955), which held that the right to a jury trial was not violated by a statute that required

the payment of a fee to appeal an arbitrator’s decision to the trial court where a jury trial

could be conducted. Significantly, however, the Smith Court held that where a claim

sought such a small amount of damages that the necessity of paying the arbitrators’ fee

would operate as an onerous restriction upon the exercise of the jury trial right, the local

3   This concurring opinion was joined by Justice Todd and Justice Stevens.


                     [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 3
court rules should be amended to lower the arbitrators’ fees to prevent the practical denial

of that jury trial right. The Zauflik concurrence interpreted Smith as suggesting that “a

statutory requirement that renders cost-prohibitive the exercise of the jury trial right

violates Article I, Section 6.” Zauflik, 104 A.3d at 1134 (Baer, J., concurring).

       Considering the practicalities of litigating a catastrophic injury case against a

political subdivision, the concurrence opined that “a victim of a political subdivision’s

negligence in a complicated case may be able to establish that the costs and fees of

litigating the claim precluded counsel from accepting the case, thereby denying the victim

the right to present the case to a jury.” Id. at 1134-35. The concurrence further opined

that plaintiffs’ counsel could not responsibly agree to represent a client where there would

be no recovery to the client, or a de minimus one, due to the litigation expenses and fees

necessary to secure a verdict. Id. at 1135.

       Emphasizing that the value of money in 2014, when Zauflik was decided, does not

spend as it did in 1978, when the statutory cap at issue was enacted, and considering the

extraordinary expenses incurred to litigate a complex case, this author called upon the

General Assembly to render moot any future litigation challenging the constitutionality of

the cap based on a proper record by enacting legislation to increase the statutory cap on

damages. The concurrence opined that the Legislature’s failure to adjust the statutory

caps may have been inadvertent, and expressed the hope that the General Assembly

would become cognizant of the oversight through the concurrence’s expression.

       Nearly five years have passed, and the General Assembly has not amended the

relevant statutes to increase the cap on damages recovered against local governments

or the Commonwealth to account for all realities, including simple inflation, that have

occurred over the many decades since the statutory caps were enacted. I respect that it

is the role of the Legislature, which has the greater capacity to evaluate complex

questions of public policy, to establish limits on the liability of local governments and the



                    [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 4
Commonwealth in negligence cases. See Zauflik, 104 A.3d at 1123 (providing that “to

the extent genuine questions might be raised regarding the amount of the cap, we note

that such questions require detailed study and analysis of all relevant policy factors in a

complicated balancing act that is properly addressed to the General Assembly”)

(emphasis removed).        However, it is the role of this Court to protect our citizens’

constitutional rights.

       Accordingly, I again respectfully suggest that the Legislature consider the facts of

this case, as well as those that have preceded it where its constituents have suffered

devastating loss through the negligence of a local government or the Commonwealth and

were denied fair compensation because of application of the statutory caps. I urge the

General Assembly to take swift action to remedy the situation by increasing the statutory

limits.4 In the event that the Legislature does not so act, this Court may be faced with a

developed challenge to the statutory caps as violative of the constitutionally guaranteed

right to a jury trial. If a plaintiff properly constructs a record to establish that the statutory

caps place an onerous burden on his or her right to a jury trial, this Court may be

compelled to strike the cap, which could leave the Commonwealth or the local

governments exposed to full liability if, and until, new legislation is passed.

       Justices Donohue, Dougherty and Mundy join this opinion.




4  I note for illustrative purposes that when the Amtrak train derailment occurred in
Philadelphia in 2015, killing eight individuals and injuring over two hundred passengers
and crew, Congress acted swiftly to amend the statutory cap applicable to rail passenger
transportation liability set forth in 49 U.S.C. § 28103, by adjusting the cap based upon the
Consumer Price Index. See Act of Dec. 4, 2015, P.L. 114-94, Div A, Title XI, § 11415(b),
129 Stat. 1689-90 (effective 10/1/2015).


                     [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 5
