                                   [J-83-2018]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT

     SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


    CHRISTOPHER G. YANAKOS, SUSAN               :   No. 10 WAP 2018
    KAY YANAKOS AND WILLIAM RONALD              :
    YANAKOS, HER HUSBAND,                       :   Appeal from the Order of the Superior
                                                :   Court entered July 26, 2017 at No.
                      Appellants                :   1331 WDA 2016, affirming the Order
                                                :   of the Court of Common Pleas of
                                                :   Allegheny County entered August 29,
                v.                              :   2016 at No. GD-15-022333.
                                                :
                                                :   ARGUED: October 24, 2018
    UPMC, UNIVERSITY OF PITTSBURGH              :
    PHYSICIANS, AMADEO MARCOS, M.D.             :
    AND THOMAS SHAW-STIFFEL, M.D.,              :
                                                :
                      Appellees                 :


                                         OPINION


JUSTICE MUNDY                                       DECIDED: OCTOBER 31, 2019
        Justice Mundy files the Opinion of the Court with respect to Part I and Part III to

the extent supported by Justice Donohue as indicated in her concurring and dissenting

opinion. Justice Mundy also files an opinion with respect to Part II, joined by Justices

Todd and Dougherty, and announces the Judgment of the Court.

        In this appeal by allowance, we consider whether the seven-year statute of repose

in Section 1303.513(a) of the Medical Care Availability and Reduction of Error Act

(MCARE Act)1 comports with Article I, Section 11 of the Pennsylvania Constitution, which

guarantees “[a]ll courts shall be open; and every man for an injury done him in his lands,


1   40 P.S. §§ 1303.101-1303.910.
goods, person or reputation shall have remedy by due course of law[.]” PA. CONST. art. I,

§ 11. Because we conclude the seven-year statute of repose is not substantially related

to an important government interest, we reverse the Superior Court’s order affirming the

trial court’s grant of judgment on the pleadings and remand for further proceedings.

                                                 I.

       Susan Yanakos suffers from a genetic condition called Alpha-1 Antitrypsin

Deficiency (AATD). Patients with AATD do not produce enough Alpha-1 Antitrypsin, a

protein synthesized in the liver that plays an important role in protecting the lungs from

damage. R.R. at 4a-5a. In the summer of 2003, one of Susan’s physicians, Dr. Amadeo

Marcos, advised her that she needed a liver transplant due to the progression of her

AATD. Because Susan was not a candidate for a cadaver liver, her son Christopher

volunteered to donate a lobe of his liver to his mother.

       Christopher underwent an extensive medical evaluation to determine whether he

was a suitable liver donor. As part of that process, and at Dr. Marcos’s request, Dr.

Thomas Shaw-Stiffel evaluated Christopher. Christopher advised Dr. Shaw-Stiffel that

several of his family members suffered from AATD, but that he was unsure whether he

did as well. Dr. Shaw-Stiffel ordered additional laboratory tests for Christopher, but never

informed him of the results, which allegedly showed that Christopher had AATD and was

not a candidate for liver donation.2 One month after Christopher’s consultation with Dr.

Shaw-Stiffel, in September 2003, Dr. Marcos went forward with the operation, removing

a portion of Christopher’s liver and transplanting it into Susan.

2 Our summary of these facts is based upon the allegations in the Yanakoses’ complaint.
While Appellees contest many of these allegations, the disputed facts were not submitted
to a fact-finder because the trial court granted Appellees’ motion for judgment on the
pleadings. See Cagey v. Commonwealth, 179 A.3d 458, 463 (Pa. 2018) (explaining our
standard of review over a decision sustaining a judgment on the pleadings requires us to
determine whether, on the facts asserted in the plaintiff’s complaint, the law makes
recovery impossible).


                                      [J-83-2018] - 2
       More than twelve years later, in December 2015, Christopher, Susan, and Susan’s

husband, William Yanakos (collectively “the Yanakoses”) sued UPMC, University of

Pittsburgh Physicians, Dr. Marcos, and Dr. Shaw-Stiffel (collectively “Appellees”). In their

complaint, the Yanakoses raised claims for battery/lack of informed consent, medical

malpractice, and loss of consortium. The Yanakoses alleged that they did not discover

Appellees’ negligence until eleven years after the transplant surgery, when additional

testing revealed that Susan still had AATD, which the transplant should have eliminated.

       In their answer to the Yanakoses’ complaint, Appellees raised the affirmative

defense that the seven-year statute of repose3 in the MCARE Act barred the Yanakoses’

claims. See 40 P.S. § 1303.513(a) (providing that “no cause of action asserting a medical

professional liability claim may be commenced after seven years from the date of the

alleged tort or breach of contract”). Appellees also filed a motion for judgment on the

pleadings based on the MCARE Act’s repose period.

       The trial court concluded that it was bound by the plain language of the MCARE

Act’s seven-year statute of repose. The court explained that, while the MCARE Act

contains two exceptions to the seven-year repose period, the Yanakoses’ claims did not

fall within either of those exceptions. Trial Ct. Op. at 5-6; see 40 P.S. § 1303.513(b)

(exception for injuries caused by foreign objects left in a patient’s body); 40 P.S.

§ 1303.513(c) (exception for malpractice claims commenced by or on behalf of a minor).

Accordingly, the trial court granted Appellees’ motion for judgment on the pleadings.


3 Statutes of repose place a temporal boundary on the right to bring a civil action. Unlike
statutes of limitations, which begin to run only after a cause of action has accrued, a
statute of repose’s time limit is measured from the date of the defendant’s last culpable
act or omission, regardless of when the injury occurred or was discovered. This means
that a statute of repose, unlike a statute of limitations, may bar a plaintiff’s suit before his
or her cause of action even arises. Vargo v. Koppers Co., Eng’g & Constr. Div., 715 A.2d
423, 425 (Pa. 1998). Statutes of repose constitute a legislative judgment that a particular
class of defendants should be free from liability after a fixed number of years.


                                       [J-83-2018] - 3
       The Yanakoses appealed to the Superior Court, raising several constitutional

challenges to the MCARE Act’s seven-year statute of repose. Relevant to this appeal,

the Yanakoses argued that the MCARE Act’s repose period violates Article I, Section 11

of the Pennsylvania Constitution, which provides in pertinent part that “[a]ll courts shall

be open; and every man for an injury done him in his lands, goods, person or reputation

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

denial or delay.” PA. CONST. art. I, § 11. Citing appellate court decisions from states with

Open Courts provisions much like our own, the Yanakoses urged the Superior Court to

hold that the MCARE Act’s statute of repose interfered with the Article I, Section 11 right

of access to the courts because its exception for foreign object plaintiffs was “arbitrary

and capricious.” See Yanakoses’ Super. Ct. Brief at 43-45 (relying on Berry v. Beech

Aircraft Corp., 717 P.2d 670, 680 (Utah 1985)).

       The Superior Court rejected the Yanakoses’ argument. The panel explained that

this Court, in Freezer Storage, Inc. v. Armstrong Cork Co., 382 A.2d 715 (Pa. 1978), held

that a twelve-year statute of repose on claims against architects and builders did not

violate the Open Courts provision of the Pennsylvania Constitution.4 Yanakos v. UPMC,

2017 WL 3168991, at * 7 (Pa. Super. 2017) (unpublished memorandum). The appellant

in Freezer Storage argued only that the Open Courts provision precluded the legislature

from abolishing a cause of action without implementing another remedy.             Freezer

Storage, 382 A.2d at 720.      Although Freezer Storage rejected as nonbinding dicta

language in earlier cases that had suggested the General Assembly might need to create


4 In Freezer Storage, the appellant had sued the construction company that originally
installed insulation material in a warehouse ceiling that eventually collapsed. Freezer
Storage, 382 A.2d at 717. The defendant asserted the twelve-year statute of repose
precluded the action because it completed the construction more than twelve years before
the appellant commenced its lawsuit. Id. at 718.



                                      [J-83-2018] - 4
an adequate substitute remedy in order to eliminate a common law cause of action,5 the

decision in Freezer Storage was narrow. We did not hold that the legislature possesses

an unlimited authority to modify the common law, nor did we articulate a concrete test for

measuring the lawfulness of statutes that abolish or modify common law remedies. See

id. at 721 (“To the extent that the dictum [in Dolan v. Linton’s Lunch] suggests that the

Legislature may never abolish a judicially recognized cause of action, we decline to follow

it.”). Nevertheless, the Superior Court’s conclusion that the MCARE Act’s statute of

repose did not violate Article I, Section 11 was based entirely upon the precept—

announced in Freezer Storage—that the Constitution “does not prohibit the Legislature

from abolishing a common law right of action without enacting a substitute means of

redress.” Yanakos, 2017 WL 3168991, at *7 (citing Freezer Storage, 382 A.2d at 720).

       The Yanakoses filed a petition for allowance of appeal, arguing that the Superior

Court misapplied Freezer Storage, and, in doing so, implicitly nullified the constitutional

right to a remedy. We granted the Yanakoses’ petition to consider whether the MCARE

Act’s seven-year statute of repose violates Article I, Section 11 of the Pennsylvania

Constitution.6 Yanakos v. UPMC, 183 A.3d 346 (Pa. 2018) (per curiam).

       Before this Court, the Yanakoses argue that legislation which deprives medical

malpractice victims of their right to file a civil action “must be subjected to exacting

constitutional scrutiny.” Yanakoses’ Brief at 12. This is so, according to the Yanakoses,

5See Dolan v. Linton’s Lunch, 152 A.2d 887, 892 (Pa. 1959) (suggesting that the General
Assembly cannot “enact a law which vitiates an existing common-law remedy without
concurrently providing for some statutory remedy”); see also Greer v. U.S. Steel Corp,
380 A.2d 1221, 1223 n.6 (Pa. 1977) (same).
6 Because we are reviewing the trial court’s order sustaining judgment on the pleadings,
our standard of review is to determine whether, based on the facts the plaintiffs pled, “the
law makes recovery impossible.” Cagey, 179 A.3d at 463. Moreover, the constitutionality
of a statute is a question of law, over which our standard of review is de novo, and our
scope of review is plenary. Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 929
(Pa. 2017).


                                      [J-83-2018] - 5
because the right to a remedy for every wrong is deeply rooted in the Anglo-American

legal tradition and explicitly enshrined in the Pennsylvania Constitution. Id. at 14. The

Yanakoses concede that the right to seek a remedy in the courts is not unfettered, and

they acknowledge that the General Assembly may impose some limits on traditional

common law theories of recovery. Even so, they argue that any such statutory restrictions

or limits must be subject to intermediate scrutiny. Id. at 18-19 (recognizing this Court

applied intermediate scrutiny to an Article I, Section 11 constitutional challenge in James

v. Southeastern Pennsylvania Transportation Authority, 477 A.2d 1302, 1306 (Pa.

1984)).7

       According to the Yanakoses, the MCARE Act’s statute of repose cannot withstand

intermediate scrutiny because the General Assembly clearly recognized the harshness

of the statute of repose when it preserved access to courts for foreign object malpractice

victims. Id. at 12; see also 40 P.S. § 1303.512(b) (providing that the statute of repose

shall not apply “[i]f the injury is or was caused by a foreign object unintentionally left in the

individual’s body”). The Yanakoses contend that this distinction between foreign object

malpractice claims and non-foreign object malpractice claims is not “substantially related

to the government’s important objective of reducing medical costs.” Yanakoses’ Brief at

35. In other words, the Yanakoses believe that the MCARE Act’s statute of repose fails

to withstand intermediate scrutiny “because, as applied, it bars the cause of action of

some injured patients, while allowing others who were similarly injured to proceed.” Id.

at 20 (emphasis omitted). Along these lines, the Yanakoses assert that the law “goes

beyond the government’s legitimate purpose by unduly eliminating the important right of

7 The Yanakoses argue, in the alternative, that we should apply strict scrutiny to laws that
interfere with the right of access to the courts. They contend that strict scrutiny is
warranted because “the right of injured parties to seek redress before a court of law” is a
“fundamental right” that is “deeply ingrained in our system of liberties.” Yanakoses’ Brief
at 21-22 (citing Grutter v. Bollinger, 539 U.S. 306, 326-27 (2003)).


                                        [J-83-2018] - 6
certain victims of medical malpractice from seeking any remedy through no fault of their

own.” Id.

       Appellees, on the other hand, argue that “[t]he Open Courts provision only applies

when a statute extinguishes a right (such as a cause of action or defense) after that right

has already accrued/vested.” UPMC’s Brief at 10; see Ieropoli v. AC&S Corp., 842 A.2d

919, 930 (Pa. 2004) (explaining that Article 1, Section 11 prevents the General Assembly

from extinguishing an already-accrued cause of action).8 Appellees emphasize that this

is not the case here because the MCARE Act went into effect in 2002--about a year before

Appellees’ allegedly negligent conduct.       Although Appellees concede that Article I,

Section 11 prevents the General Assembly from extinguishing already vested legal

claims, they argue it does not prevent the legislature from abolishing a recognized cause

of action altogether. Id. at 11. When the General Assembly does abolish a cause of

action (or, as is the case here, effectively abolishes it for some class of would-be

plaintiffs), Appellees argue reviewing courts should apply the rational basis test and

uphold the law as long as it is rationally related to a legitimate government interest. Id. at

20; Physicians’ Brief at 17.

       Alternatively, Appellees maintain that, even if we apply some form of heightened

scrutiny, the MCARE Act’s seven-year statute of repose nevertheless should be upheld.

UPMC’s Brief at 36. In this regard, Appellees contend that the statute of repose is justified

given the Commonwealth’s important interest in controlling the cost of professional liability

insurance and in “curtailing litigation difficulties associated with stale claims.” Id. at 37.

Appellees posit that one way to reduce malpractice insurance premiums is to reduce the


8 The four Appellees in this matter have filed two separate briefs. Although Appellees all
offer similar arguments, when necessary to distinguish between the two filings, we will
refer to the brief filed by UPMC and University of Pittsburgh Physicians as “UPMC’s Brief”
and the brief filed by Dr. Shaw-Stiffel and Dr. Marcos as “Physicians’ Brief.”


                                       [J-83-2018] - 7
number of professional liability claims that insurers must pay and defend against. One

method to accomplish that is by enacting a statute of repose, which removes the

temporally unlimited exposure that would otherwise exist because of the discovery rule

to the statute of limitations.9

                                                  II.

                                                  A.

       The Pennsylvania Constitution provides our citizens with a right to a remedy in

Article I, Section 11, which states:

               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. In the past, this Court has recognized that Article 1, Section 11

“provided that where a legal injury is sustained, there shall and will always be access to

the courts of this Commonwealth.” Masloff v. Port Auth. of Allegheny County, 613 A.2d

1186, 1190 (Pa. 1992). Although the Federal constitution does not contain an analogous

protection, the majority of state constitutions include a similar provision. See David

Schuman, The Right to a Remedy, 65 TEMP. L. REV. 1197, 1201 (1992) (noting “the

citizens of thirty-nine states can claim a constitutional ‘right to a remedy.’”).




9 Although Appellees maintain that strict scrutiny is not warranted, they suggest that the
statute of repose, and the exceptions to it, are narrowly tailored to further the
Commonwealth’s important interest in controlling the cost of medical professional liability
insurance. UPMC’s Brief at 37.



                                       [J-83-2018] - 8
      Historically, this Court and other state courts have traced the foundation of the

“right to a remedy” to the Magna Carta.10 Ieropoli, 842 A.2d at 925 (Pa. 2004) (“This

provision, commonly referred to as the ‘open courts’ or ‘remedies’ clause, is derived from

Magna Carta and Sir Edward Coke’s Seventeenth Century commentary on the Great

Charter, which was relied upon by the drafters of early American state constitutions.”);

Schuman, supra, at 1199 (explaining modern remedies clauses are derived from Lord

Coke’s commentary on Magna Carta); see also Menges v. Dentler, 33 Pa. 495, 498 (Pa.

1859) (“Parliament may disregard Magna [Carta], but our legislature must obey the

constitution.”). The Remedies Clause was added to the Pennsylvania Constitution in

1790. As an overview, the 1789-1790 constitutional convention:

             repealed Pennsylvania’s frame of government enacted in the
             early months of the Revolution, replacing it with the 1790
             Constitution, a document that embodied the republican
             principles of 1776: a Bill of Rights, an independent judiciary,
             and an elected legislature and executive. The new frame of
             government, however, significantly altered the relationship
             between the branches of government. Gone were the weak
             plural executive and the all-powerful unicameral Assembly; in
             their place the delegates provided for a governor equipped
             with veto power and a bicameral legislature. Furthermore, the
             convention established the direct popular election of the
             governor and the members of the Senate and House of
             Representative and provided for legislative districts based on
             equitable divisions of population.
Joseph S. Foster, The Politics of Ideology: The Pennsylvania Constitutional Convention

of 1789-1790, 59 PA. HIST.: J. MID-ATLANTIC STUD. 122, 123 (1992).




10See, e.g., Lankford v. Sullivan, Long & Hagerty, 416 So.2d 996, 999 (Ala. 1982);
Kenyon v. Hammer, 688 P.2d 961, 966 n.2 (Ariz. 1984); State ex rel. Cardinal Glennon
Mem’l Hosp. for Children v. Gaertner, 583 S.W.2d 107, 110 (Mo. 1979).



                                     [J-83-2018] - 9
       Focusing on the Remedies Clause, the minutes of the constitutional convention

reveal that the Remedies Clause was originally proposed without the second sentence

limiting suits against the Commonwealth.11 MINUTES OF THE CONVENTION OF 1789-90, at

162    (memorializing     committee     report    of   Dec.    23,    1789),    available   at

https://www.paconstitution.org/wp-content/uploads/2017/11/proceedings1776-1790-

1.pdf. The drafters later added a second sentence providing “[s]uits may be brought

against the [C]ommonwealth as well as against other bodies corporate and individuals”

without the limitation that the legislature could limit suits against the Commonwealth. Id.

at 282 (Aug. 27, 1790 convention amendment). Subsequently, the drafters struck the

phrase “as well as against other bodies corporate and individuals” and substituted “in

such manner, in such courts and in such cases as the legislature shall, by law, direct.”

Id. at 291-92 (Aug. 31, 1790 convention amendment). Apart from showing how the

drafters limited the right to a remedy in suits against the Commonwealth, the minutes of

the convention do not contain any meaningful discussion of the Remedies Clause.

       In recognizing that Article I, Section 11 protects a citizen’s right to a remedy, this

Court has interpreted it as an “imperative limitation[] on legislative authority, and

imperative imposition[] of judicial duty.” Menges, 33 Pa. at 498. Notwithstanding this

interpretation, however, in more recent opinions, we have recognized the inherent



11 As introduced, the Remedies Clause provided: “That all courts shall be open, and every
freeman for an injury done him in his lands, goods, person or reputation, shall have
remedy by the due course of law, and right and justice administered to him without sale,
denial or delay.” This language is similar to Lord Coke’s commentary on the Magna Carta:
“[E]very Subject of this Realm, for injury done to him [either in his goods, lands, or person],
by any other Subject . . . may take his remedy by the course of the Law, and have justice,
and right for the injury done to him, freely without sale, fully without denial, and speedily
without delay.” EDWARD COKE, THE SECOND PART OF THE INSTITUTES OF THE LAWS OF
ENGLAND                  55-56                (1681),                 available              at
http://lawlibrary.wm.edu/wythepedia/library/CokeSecondPartOfInstitutesOfTheLawsOfE
ngland1681.pdf.


                                      [J-83-2018] - 10
legislative prerogative of guiding the formation of the law. Freezer Storage, 382 A.2d at

721. Indeed, in upholding a statute of repose that limited the liability of individuals

performing building repairs, we noted the balance between the legislature guiding the law

and the courts in interpreting it:

              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.
Id. In crafting the jurisprudence surrounding the remedies clause in this way, we diverged

from a quid pro quo analysis of the remedies clause, where “we originally required the

legislature to provide a substitute remedy anytime it eliminated a remedy.” Konidaris v.

Portnoff Law Assocs., 953 A.2d 1231, 1240 (Pa. 2008).12 This line of cases represented

a shift away from treating the constitutional protections inherent in the remedies clause

as a fundamental right. Compare id., and Freezer Storage, 382 A.2d at 721, with Kelly v.

Brenner, 175 A. 845, 847 (Pa. 1934) (describing the right to a remedy and open courts

as a “fundamental right[] which should not be infringed upon, unless no other course is

reasonably possible”).

       Because this Court has “curtailed the reach of the remedies clause” in the past, it

follows that the right to a remedy is not a fundamental right. Konidaris, 953 A.2d at 1241.

Nonetheless, based on the right’s explicit inclusion in our constitution, coupled with its


12As the Konidaris Court determined, inasmuch as Dolan v. Linton’s Lunch stood for the
proposition that the legislature may not abolish a judicially recognized cause of action, it
was dicta and was expressly not followed by this Court.


                                     [J-83-2018] - 11
historical significance, the right to a remedy is an important right. See PA. CONST. art. I,

§ 11; see also Smith v. City of Phila., 516 A.2d 306, 311 (Pa. 1986) (plurality opinion)

(explaining “[b]ecause the right implicated . . . —access to the courts—is specifically

limited by Art. I, § 11 of the Pennsylvania Constitution, we concluded that it is not a

fundamental right”).




                                     [J-83-2018] - 12
                                             B.

       Because the MCARE Act curtails the important constitutional right to a remedy, we

must apply intermediate scrutiny to determine whether the MCARE statute of repose is

substantially related to achieving an important government interest. See Craig v. Boren,

429 U.S. 190, 197 (1976). Statutes which infringe on the right to a remedy—and other

important rights—are subject to a heightened level of scrutiny. See James, 477 A.2d at

1306 (applying a heightened standard of review when analyzing a law which restricted

the plaintiff’s “important interest in access to the courts”); see also Smith, 516 A.2d at 311

(Noting that the “important interest in access to the courts . . . should be examined

pursuant to an intermediate standard of review.”).13

       More colloquially deemed intermediate scrutiny,

              [t]his standard of review requires that the government interest
              be an ‘important’ one; that the classification be drawn so as to
              be closely related to the objectives of the legislation; and that
              the person excluded from an important right or benefit be
              permitted to challenge his exclusion on the grounds that in his
              particular case, denial of the right or benefit would not promote
              the purpose of the classification.




13 At least four other states have applied intermediate scrutiny to invalidate statutes of
repose as unconstitutional. See Lankford, 416 So.2d at 1001 (declaring its “review is
directed to the question whether a substantial relationship exists between the [social] evil
and the legislature’s attempt to eradicate the evil.”); Hanson v. Williams County, 389
N.W.2d 319, 328 (N.D. 1986) (declaring unconstitutional a products liability statute of
repose because it did not have “a close correspondence to the legislative goals”); Heath
v. Sears, Roebuck & Co., 464 A.2d 288, 295 (N.H. 1983) (invalidating products liability
statute of repose under intermediate scrutiny because it was not “substantially related to
a legitimate legislative object”); Berry, 717 P.2d at 683 (concluding products liability
statute of repose was unconstitutional because it did not “reasonably and substantially
advance the stated purpose of the statute”).



                                      [J-83-2018] - 13
Smith, 516 A.2d at 311.14 Under intermediate scrutiny, the proponent of the statute “bears

the burden of proof on the appropriateness of the means it employs to further its interest.”

Binderup v. Attorney Gen. U.S., 836 F.3d 336, 353 (3d Cir. 2016) (citing Bd. of Trs. of

State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)).

       That this Court in James has identified the Article I, Section 11 right as important

and applied intermediate scrutiny in evaluating challenges implicating that right belies the

dissenting opinion’s position that intermediate scrutiny is “manifestly incompatible with

our existing Remedies Clause jurisprudence[.]”         Dissenting Op. (Wecht, J.) at 9.15

Further, the dissent’s recognition that the 1790 Constitution was a response to unchecked

legislative power is in tension with its adoption of a “heightened scrutiny” test that is

deferential to legislative enactments. Compare id. at 5 with id. at 9-10. The dissent’s

“heightened scrutiny” is a hybrid test that subjects the legislature’s goal to higher scrutiny

(“response to a clear social or economic need”) but does not similarly subject the

legislature’s means to any additional scrutiny (“a rational and non-arbitrary connection to

that need”). Id. at 9; see also Kramer v. Workers’ Comp. Appeal Bd. (Rite Aid Corp.), 883

A.2d 518, 534 (Pa. 2005) (noting rational basis test is deferential to legislative

enactments).    Under this “heightened scrutiny,” as long as the legislature seeks to

ameliorate a clear social or economic need, the means it selects, i.e. the legislation, are


14  Unlike the rational basis test, intermediate scrutiny does not evaluate the
reasonableness or arbitrariness of legislation. See, e.g., William Penn Sch. Dist. v. Pa.
Dep’t of Educ., 170 A.3d 414, 458 (Pa. 2017) (“If the rational basis test applies, then the
classification in question must be ‘reasonable rather than arbitrary and bear a reasonable
relationship to the object of the legislation.’” (quoting Commonwealth v. Albert, 758 A.2d
1149, 1151 (Pa. 2000)); Commonwealth v. Parker White Metal Co., 515 A.2d 1358, 1365
(Pa. 1986) (explaining rational basis analyzes the legislation’s reasonableness,
arbitrariness, and relation to its objective).
15We recognize James involved an equal protection challenge invoking the right to a
remedy, and we find no reason to treat differently a direct challenge under Article I,
Section 11.


                                      [J-83-2018] - 14
reviewed under a rational basis standard to determine if they are rational and non-

arbitrary. Pennsylvania courts have never utilized such a test in connection with the

Remedies Clause or otherwise.         Further, we reject this test because it does not

adequately safeguard the important right to a remedy.

                                             III.

       Applying intermediate scrutiny, we conclude the governmental interest in

controlling the rising costs of medical malpractice insurance premiums and of medical

care is important. However, the MCARE Act’s statute of repose as enacted is not

substantially related to achieving those goals. Generally, statutes of repose are intended

to provide actuarial certainty to insurers in calculating insurance premium rates:

              Perhaps the most noted justification for statutes of repose is
              the desire to alleviate the insurance problem facing
              manufacturers, the medical profession, and the construction
              industry. Responsibility for older products, latent medical
              problems, and ‘permanent’ or durable improvements expose
              these groups to abnormally long periods of potential liability
              and unusually large numbers of potential plaintiffs.
              Proponents contend that this ‘long-tail’ problem is the principal
              culprit in the alleged ‘insurance crisis.’ Theoretically, by
              cutting off a defendant's liability after a given number of years,
              statutes of repose lead to more certain liability and thus
              provide greater actuarial precision in setting insurance rates.
              More certain liability and stabilized insurance rates in turn
              facilitate efficient business planning and ultimately benefit
              businessmen, professionals, consumers, and the economy.
Josephine Herring Hicks, The Constitutionality of Statutes of Repose: Federalism Reigns,

38 VAND. L. REV. 627, 632-33 (1985) (footnotes omitted).

       Indeed, a review of the legislative history of the MCARE Act indicates this was the

purpose of including a statute of repose. Representative Curtis Schroder, who sponsored

the amendment introducing a statute of repose, stated:

              Well, right now, of course, there is a 2-year statute of
              limitations with a discovery rule, and the problem with that is,


                                      [J-83-2018] - 15
              it is very difficult for any malpractice insurer to come up with
              accurate rates based upon any predictability, any stability or
              certainty, and part of our whole effort here is to provide the
              stability and predictability that malpractice carriers will need
              and have told us that they will need to come back into the
              State of Pennsylvania and to help reduce this crisis.
H.B. 1802, House Journal, Jan. 29, 2002, at 116.

       At the time of Representative Schroder’s remarks, the proposed bill contained a

four-year statute of repose. H.B. 1802, 186th Leg., Printer’s No. 3202, at 99 (Pa. Jan. 29,

2002). It did not include a time-limit for foreign objects cases. Id. Further, minors whose

claim accrued when they were younger than 14 had to commence an action no later than

four years from when their parent or guardian knew or should have known of the cause

of action, or four years from their fourteenth birthday, whichever was earlier.16           Id.

Addressing a question about the limitation on minors’ causes of action, Representative

Schroder responded:

              [T]he rationale was to try to establish a reasonable number
              that will, you know, provide predictability and stability in
              predicting these claims so the proper underwriting can occur
              and that the current system has really no way of predicting,
              you know, when or if or how long into the future a lot of these
              cases will be brought about with regards to minors. So it was
              an area that we felt we needed to provide some stability and
              predictability in, and 4 years, I am not saying there is a magic



16 The American Medical Association issued model legislation, which contains a shorter
repose period. It provided all causes of action must be commenced within two years,
except foreign objects cases, which must be commenced within four years: “The time
within which an action must be commenced shall not be extended by any of the provisions
of this section including those relating to the discovery of foreign objects beyond four
years after the date of the act, omission or failure giving rise to such action.” Am. Med.
Ass’n, Dep’t of State Legislation, Statute of Limitations in Medical Injury Cases (1985),
available        at       https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-
browser/specialty%20group/arc/limitation.pdf.         Further, it applied to “all persons
regardless of minority or other legal disability, except that a minor under the full age of
eight (8) years shall have until his/her tenth birthday to file suit based on a cause of action
which accrued prior to his/her eighth birthday.”


                                      [J-83-2018] - 16
             number to it, but it seemed like a reasonable resolution to that
             issue.
H.B. 1802, House Journal, Jan. 29, 2002, at 116.

      Through the legislative process, the Senate removed the four-year statute of

repose and instead provided that all causes of action must be “commenced within the

existing applicable statute of limitations.” H.B. 1802, 186th Leg., Printer’s No. 3320, at

102 (Pa. Feb. 12, 2002). Thereafter, the Senate Committee on Rules and Executive

Nominations reinserted a seven-year statute of repose, which the General Assembly

enacted. H.B. 1802, 186th Leg., Printer’s No. 3402, at 39-40 (Pa. Mar. 13, 2002). It

provides:

             § 1303.513. Statute of repose

             (a) General rule.--Except as provided in subsection (b) or (c),
             no cause of action asserting a medical professional liability
             claim may be commenced after seven years from the date of
             the alleged tort or breach of contract.

             (b) Injuries caused by foreign object.--If the injury is or was
             caused by a foreign object unintentionally left in the
             individual's body, the limitation in subsection (a) shall not
             apply.

             (c) Injuries of minors.--No cause of action asserting a
             medical professional liability claim may be commenced by or
             on behalf of a minor after seven years from the date of the
             alleged tort or breach of contract or after the minor attains the
             age of 20 years, whichever is later.

             (d) Death or survival actions.--If the claim is brought under
             42 Pa.C.S. § 8301 (relating to death action) or 8302 (relating
             to survival action), the action must be commenced within two
             years after the death in the absence of affirmative
             misrepresentation or fraudulent concealment of the cause of
             death.

                                           ...

             (f) Definition.--For purposes of this section, a “minor” is an
             individual who has not yet attained the age of 18 years.


                                     [J-83-2018] - 17
40 P.S. § 1303.513.

       The effect of the seven-year repose period for most medical malpractice actions is

to limit the “discovery rule” to seven years.17 In most cases, if a malpractice victim

discovers the injury and its cause within seven years, the victim may bring a timely lawsuit;

however, after seven years, the statute of repose bars the victim’s action. Additionally,

foreign objects cases are exempt from the statute of repose, and minors can file a lawsuit

either seven years from the date of injury or until their twentieth birthday, whichever is

later.18 Thus, the statute of repose prevents most medical malpractice victims, except

foreign objects plaintiffs and certain minors, from exercising the constitutional right to a

remedy after seven years.

       In order for this statutory scheme infringing on the Article I, Section 11 right to a

remedy to pass intermediate scrutiny, it must be substantially or closely related to an

important government interest. As noted, the goal of the statute of repose was to control

medical malpractice premium rates by providing actuarial certainty. Accordingly, the

question is whether the seven-year statute of repose is substantially related to controlling

the cost of medical malpractice premium rates. Under intermediate scrutiny, the party

defending the statute’s constitutionality has the burden to demonstrate the legislation is

substantially related to its purpose. See, e.g., United States v. Virginia, 518 U.S. 515,

533 (1996); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); see also


17“[T]he discovery rule tolls the statute of limitations where the plaintiff is reasonably
unaware that he has been injured and that his injury has been caused by another party's
conduct.” Nicolaou v. Martin, 195 A.3d 880, 892 (Pa. 2018).
18Minors under 13 years old at the time of their injury have more than seven years to
commence their actions because the statute of repose permits them to file a lawsuit until
their twentieth birthday. For example, a 12-year-old malpractice victim would have until
their twentieth birthday to file suit, which is more than the seven-year repose period.
Thus, the younger a minor is at the time of the alleged malpractice, the longer the minor
has to timely file suit before the statute of repose bars their claim.


                                      [J-83-2018] - 18
Binderup, 836 F.3d at 353. To meet this burden, the statute’s proponent “can rely on a

wide range of sources, including legislative history, empirical evidence, case law, and

even common sense, but it may not ‘rely upon mere anecdote and supposition.’” Tyler v.

Hillsdale County Sheriff’s Dep’t, 837 F.3d 678, 694 (6th Cir. 2016) (quoting United States

v. Carter, 669 F.3d 411, 418 (4th Cir. 2012)).

       In this case, there was no evidence to show the initially proposed four-year statute

of repose would provide actuarial certainty, except that it “seemed like a reasonable

resolution” to “provide some stability and predictability” to insurers. H.B. 1802, House

Journal, Jan. 29, 2002, at 116. Moreover, there is no evidence in the legislative history

as to how the General Assembly arrived at a seven-year statute of repose with exceptions

for foreign objects cases and minors. The legislature did not cite any statistics on the

number of medical malpractice actions that are commenced after seven years of the

occurrence giving rise to the action.19 There is no indication that such a time period, as

opposed to a longer or shorter period, will have any effect on malpractice insurance costs.

       Likewise, the parties in their current briefing failed to suggest the seven-year

repose period has any substantial relationship to the legislative goal of controlling

malpractice insurance costs.     See UPMC’s Brief at 36-37; Physicians’ Brief at 19.

Appellees narrowly focus on the foreign objects exception, arguing that exception is

substantially related to an important government interest. However, the proper focus is

on the manner in which the statute of repose infringes on the Article I, Section 11 right to

19 The dissent mischaracterizes our review as imposing a requirement on the legislature
to provide evidence in support of its legislation. To be clear, Appellees have the burden
to show the challenged statute of repose passes intermediate scrutiny. The legislative
history could be a source of evidence establishing a substantial relationship. However,
here, the legislative history does not demonstrate any justification for the seven-year
statute of repose. While this is not dispositive, it does not support Appellees’ position.
See FCC v. League of Women Voters of Cal., 468 U.S. 364, 393-94 (1984) (looking at
legislative history in analyzing whether legislation substantially advanced governmental
purpose).


                                     [J-83-2018] - 19
a remedy: the statute permits malpractice victims who discover their injury and its cause

within seven years, foreign objects plaintiffs, and minors to exercise their constitutional

right to a remedy; on the other hand, the statute deprives malpractice victims who do not

discover their injury or its cause within seven years of their right to a remedy. Appellees

have not demonstrated that this seven-year period is substantially related to the goal of

controlling insurance premiums.20

        Additionally, the statute of repose as enacted does not offer insurers a definite

period after which there will be no liability because it exempts foreign objects cases and

minors, so insurers still have to account for those unpredictable “long-tail” cases in

calculating malpractice insurance premiums.           Therefore, the seven-year statute of

repose, with exceptions for foreign objects cases and minors, is not substantially related

to controlling the cost of malpractice insurance rates by providing actuarial predictability

to insurers.     Accordingly, we conclude the MCARE Act’s statute of repose is

unconstitutional, reverse the order of the Superior Court, and remand for further

proceedings.

        Justices Todd and Dougherty join the opinion.

        Justice Donohue joins Part I of the opinion, as well as Part III to the extent specified

in her responsive opinion, and files a concurring and dissenting opinion.

        Justice Wecht files a dissenting opinion, joined by Chief Justice Saylor and Justice

Baer.

20 For these reasons, the statute of repose is not constitutional even under the dissent’s
formulation of “heightened scrutiny” because the seven-year limitation is arbitrary. See
also DeYoung v. Providence Med. Ctr., 960 P.2d 919, 925 (Wash. 1998) (en banc)
(concluding an eight-year statute of repose for medical malpractice claims was
unconstitutional under the rational basis test because “[t]he relationship between the goal
of alleviating any medical insurance crisis and the class of persons affected by the eight-
year statute of repose is too attenuated” where evidence presented to the legislature
showed less than 0.5 percent of claims were reported more than eight years after the
underlying occurrence).


                                       [J-83-2018] - 20
