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