H. Freilich v. SEPTA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hayley Freilich, :
:
Appellant :
:
v. : No. 327 C.D. 2022
: Argued: March 6, 2023
Southeastern Pennsylvania :
Transportation Authority :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: July 6, 2023

Hayley Freilich (Plaintiff) appeals from the judgment entered in the
Philadelphia County Court of Common Pleas (trial court) in her favor and against
the Southeastern Pennsylvania Transportation Authority (SEPTA). We affirm.
On October 2, 2017, Plaintiff was struck by a SEPTA bus while in the
crosswalk on Broad Street at Vine Street in downtown Philadelphia. The bus struck
Plaintiff with the front passenger axle and ran over her left foot. Emergency medical
personnel transported Plaintiff to Hahnemann Hospital. As a result of her injuries,
Plaintiff underwent a partial left foot amputation that has required multiple
additional surgeries and significant medical care, and will require medical care for
the rest of her life.
 On October 20, 2017, Plaintiff retained Kline & Specter, P.C. (Law
Firm) to represent her in litigation against SEPTA. Plaintiff entered into a contingent
fee agreement with the Law Firm under which the firm would receive one-third of
any recovery, plus the reimbursement of expenses. A basis for the representation
was that the Law Firm would challenge the constitutionality of Section 8528(b) of
the Judicial Code1 limiting SEPTA’s liability to the $250,000.00 cap provided
therein, asserting that the cap violates article I, section 62 and article I, section 11 of
the Pennsylvania Constitution.3 See Reproduced Record (RR) at 517a.
On June 6, 2018, Plaintiff filed a one-count Complaint in the trial court
alleging that SEPTA was negligent when its bus struck her at the intersection of
Broad and Vine Streets. See RR at 30a-38a.4 On July 16, 2018, SEPTA filed an

1
42 Pa. C.S. §8528(b). Section 8528(b) states: “(b) Amount recoverable.--Damages
arising from the same cause of action or transaction or occurrence or series of causes of action or
transactions or occurrences shall not exceed $250,000 in favor of any plaintiff or $1,000,000 in
the aggregate.” See also Iovan v. Nestel, 150 A.3d 571, 573 (Pa. Cmwlth. 2016) (“SEPTA is a
Commonwealth agency for purposes of sovereign immunity. Nardella v. Southeastern
Pennsylvania Transportation Authority, 34 A.3d 300, 303 (Pa. Cmwlth. 2011).”).

2
Pa. Const. art. I, §6. Article I, section 6 states, in pertinent part: “Trial by jury shall be
as heretofore, and the right thereof remain inviolate.”

3
Pa. Const. art. I, §11. Article I, section 11 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.

4
On June 27, 2018, Plaintiff filed an Application for Extraordinary Relief Under 42
Pa. C.S. §726 in the Supreme Court asking that Court to exercise plenary jurisdiction over her
constitutional challenges to Section 8528(b)’s statutory cap on damages. On October 15, 2018, by
(Footnote continued on next page…)
2
Answer and New Matter asserting, inter alia, all defenses and immunities, and
limitations available to the Commonwealth in the Judicial Code. See id. at 42a-43a.
Nevertheless, on July 20, 2018, SEPTA made a formal offer to settle all of Plaintiff’s
claims for the $250,000.00 cap on damages contained in Section 8528(b) of the
Judicial Code. See id. at 500a. Plaintiff rejected the offer as part of her constitutional
challenge to the statutory cap. See id. at 517a.
A jury trial limited to the determination of compensatory damages was
scheduled for November 1, 2021, because SEPTA had admitted liability.5 However,
in light of the COVID-19 pandemic and the time and expense associated with a trial,
on October 29, 2021, the parties entered into a Stipulated Jury Verdict for Plaintiff
(Stipulated Verdict). See RR at 463a-68a. The damages awarded were $500,000.00
for past economic loss; $500,000.00 for future economic loss; and $6,000,000.00 for
past and present non-economic losses. See id. at 464a, 467a. The parties
acknowledged that they would file post-trial motions as if it was a jury verdict. See
id. at 466a.
On November 5, 2021, Plaintiff filed a Motion for Delay Damages. See
RR at 469a-84a. Based on the $7,000,000.00 Stipulated Verdict, Plaintiff sought
delay damages totaling $892,979.45. See id. at 477a. On November 8, 2021, SEPTA
filed a Motion to Mold the Verdict alleging that the Stipulated Verdict should be
molded to conform to the statutory cap of Section 8528(b) of the Judicial Code. See
id. at 507a-10a. On December 20, 2021, SEPTA filed an Answer to Plaintiff’s
Motion for Delay Damages again invoking the application of Section 8528(b), and

per curiam order, the Supreme Court denied Plaintiff’s Application. See Freilich v. Southeastern
Pennsylvania Transportation Authority (Pa., No. 70 EM 2018, filed October 15, 2018).
5
On October 29, 2021, SEPTA filed its trial/hearing exhibits in the trial court designated
as D1 through D13. On November 1, 2021, Plaintiff filed her trial/hearing exhibits in the trial
court designated as P-1 through P-26.
3
based on its July 20, 2018 settlement offer in the amount of that statutory cap. See
RR at 486a-506a.
That same day, Plaintiff filed an Answer and Memorandum of Law in
opposition to SEPTA’s post-trial Motion to Mold the Verdict. See RR at 511a-848a.
In her response, Plaintiff relied on the late Chief Justice Baer’s Concurring Opinion
in Zauflik v. Pennsbury School District, 104 A.3d 1096, 1134 (Pa. 2014) (Baer, J.,
concurring), in which he asserted that the constitutional challenge to the statutory
cap for local political subdivisions6 was without merit, but “that through a properly
developed record, a victim may be able to establish that the statutory damages cap
constitutes an onerous procedural barrier to the jury trial right in violation of [a]rticle
I, [s]ection 6.[7]”

6
See Section 8553(b) of the Judicial Code, 42 Pa. C.S. §8553(b) (“(b) Amounts
recoverable.--Damages arising from the same cause of action or transaction or occurrence or
series of causes of action or transactions or occurrences shall not exceed $500,000 in the
aggregate.”).

7
See also Grove v. Port Authority of Allegheny County, 218 A.3d 877, 892 (Pa. 2019)
(Baer, J., concurring):

Nearly five years have passed [since the opinion in Zauflik
was filed], 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 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).
(Footnote continued on next page…)
4
 To this end, the Law Firm obtained the reports of a number of experts
to demonstrate Plaintiff’s injuries, her resulting medical and surgical care, and her
surgical prognosis; her functional deficits and her rehabilitative prognosis; her
mental health following the partial amputation of her foot; a life care plan describing
her medical and personal care costs over her lifetime; and the inflation-adjusted
value of Plaintiff’s future personal and medical care costs. See RR at 217a-44a. The
Law Firm advanced $72,170.83 for these expert reports. See id. at 518a. The Law
Firm spent $1,492.27 for medical records; $1,585.00 for trial technology services;
and $957.14 for court filings, service, and messenger fees. See id. In addition, under
the contingent fee agreement, the Law Firm will be paid $83,333.33 due to the
liability cap. See id. at 530a. Deducting these litigation expenses and counsel fees
from the $250,000.00 gross recovery, Plaintiff would only net $90,462.00 in
compensation. See id.

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. 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. [(Footnote omitted).]
5
 Moreover, Plaintiff’s health insurer, Aetna Health, Inc. (Aetna), has
paid $520,668.42 for health care resulting from the accident. See RR at 557a-600a.
Under the Certificate of Coverage setting forth Aetna’s rights and responsibilities,
Aetna “retains the right for repayment of the full cost of all benefits” that it has paid,
and has “an assignment of the proceeds of any settlement, judgment, or other
payment received by [her] to the extent of the full cost of all benefits provided by
[Aetna].” Id. at 639a, 674a. The Certificate of Coverage also grants Aetna “a first-
priority lien” on any recovery from a third party, and Plaintiff must pay “as the first
priority from any recovery, settlement, or judgment . . . any and all amounts due
[Aetna] as reimbursement for the full cost of all benefits” that Plaintiff received
because of injuries for which a third party is responsible. Id. at 640a, 675a. Thus,
any net recovery that Plaintiff would receive under the statutory cap could be
recovered by Aetna.
Finally, Plaintiff also received $7,967.31 in short-term disability
benefits, and $31,383.31 in long-term disability benefits from The Hartford under a
disability insurance policy. See RR at 787a-90a. Under the policy, The Hartford
reserved the right to reimbursement “to the fullest extent allowed by statute and
customary practice.” See id. at 791a-843a.
On February 11, 2022, the trial court heard argument on the post-trial
motions. See RR at 924a-63a. On March 4, 2022, the trial court issued an Order
and Memorandum Opinion granting SEPTA’s Motion to Mold the Verdict to
comply with Section 8528(b) of the Judicial Code and denying Plaintiff’s Motion
for Delay Damages. On March 28, 2022, Plaintiff filed a Praecipe for Judgment, see
RR at 964a-65a, and judgment for Plaintiff in the amount of $250,000.00 and against

6
SEPTA was entered on the trial court’s docket. See id. at 27a-28a. On April 4, 2022,
Plaintiff filed the instant timely appeal to this Court.8 See id. at 28a, 966a-67a.
In this appeal,9 Plaintiff claims that the trial court erred in molding the
Stipulated Verdict to the statutory cap in Section 8528(b) of the Judicial Code
because it violates her right to a jury trial under article I, section 6 as the entire
judgment will be consumed by costs, fees, and insurance reimbursement claims.
Likewise, she contends that the trial court erred in molding the Stipulated Verdict to
the statutory cap in Section 8528(b) because it violates her right to a remedy under
article I, section 11 as the entire judgment will be consumed by costs, fees, and
insurance reimbursement claims. We do not agree.
As outlined in the trial court’s opinion filed in this matter, in Zauflik,
the Supreme Court considered, inter alia:

(3) Does the [Section 8553] liability cap violate
[appellant’s] right to jury trial guaranteed by [a]rticle I,

8
That same day, Plaintiff filed another Application for Extraordinary Relief Under 42
Pa. C.S. §726 in the Supreme Court again asking that Court to exercise plenary jurisdiction over
her constitutional challenges to Section 8528(b)’s statutory cap on damages. On August 10, 2022,
by per curiam order, the Supreme Court again denied Plaintiff’s Application. See Freilich v.
Southeastern Pennsylvania Transportation Authority (Pa., No. 20 EM 2022, filed August 10,
2022).

9
As the Supreme Court has explained: “As questions regarding the interpretation of the
Rules of Civil Procedure are questions of law, our standard of review is de novo and our scope of
review is plenary. American and Foreign Ins[urance] Co. v. Jerry’s Sport Center, Inc., [2 A.3d
526, 532-33 (Pa. 2010)].” Marlette v. State Farm Mutual Automobile Insurance Company, 57
A.3d 1224, 1230 (Pa. 2012). Thus, “[i]n analyzing the propriety of molding a verdict, our scope
of review is plenary. See Baker v. AC and S, 755 A.2d. 664, 667, n.4 (Pa. 2000), [(citing)] Phillips
v. A-Best Products Co., 665 A.2d 1167 (Pa. 1995)[)]. Our standard of review requires us to
examine the lower tribunal’s ruling for an abuse of discretion or error of law. Id. (citations
omitted).” Darwish v. Einspahr (Pa. Super., No. 2588 EDA 2019, filed September 24, 2020), slip
op. at 8 (footnote omitted); see also Marlette, 57 A.3d at 1230 (“[A] plaintiff’s recovery of delay
damages under Pa.R.Civ.P. 238 is limited to the amount of the legally-recoverable molded verdict
as reflected by the insurance policy limits.”).
7
 [s]ection 6 of the Pennsylvania Constitution where [the
school district] did not challenge the verdict’s
excessiveness yet the liability cap eviscerated the verdict
by reducing [appellant’s] recovery by over 96%?

***

(5) Does the liability cap violate the open courts provision
of [a]rticle I, [s]ection 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?
Zauflik, 104 A.3d at 1103.
With respect to the former article I, section 6 claim, as explained by the
Supreme Court:

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 [a]rticle I,
[s]ection 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 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 [Judicial Code’s] damages cap
clearly, palpably and plainly violates [a]rticle I, [s]ection
6.
Zauflik, 104 A.3d at 1133.10

10
See also Griffin v. Southeastern Pennsylvania Transportation Authority, 757 A.2d 448,
452-53 (Pa. Cmwlth. 2000), wherein this Court explained:

(Footnote continued on next page…)
8
 Plaintiff asserts that her inability to ultimately obtain any financial
recovery based on her injuries flowing from SEPTA’s admitted negligence translates
into an article I, section 6 violation based on her purported inability to adequately
prepare for trial. See Plaintiff’s Brief at 9 (“[Plaintiff] argues that Section 8528
violates the right to a jury trial . . . on the basis that the cap rendered her case
uneconomical to reach trial because of the expensive and complex features of
modern litigation, including expert retention, trial costs, attorney fees, and third-
party insurance claims. Because a gross recovery . . . under the cap would produce
no or de minimis return[s . . . ,] Section 8528 placed onerous practical impediments
to preparing her case for trial.”).
However, assuming as true the fees and costs filed by Plaintiff in the
trial court, she was, in fact, able to adequately prosecute the instant matter. See RR
at 518a (outlining the cost of prosecuting Plaintiff’s claims such as $72,170.83 for a

Lastly, [the plaintiff] argues that because of inflation, the
statutory cap of $250,000 enacted in 1978 has been eroded to merely
a $100,000 value today and that to obtain the $250,000 in today’s
dollars, the cap should be increased to $625,000. SEPTA responds
that it is for the legislature to modify its cap and not for this [C]ourt
to do so. We agree because if the legislature were to set the cap
today at $250,000 given that it would not be violative of the
constitution, as held above, the mere passage of time will not render
the amount of the cap unconstitutional due to the influence of
inflation. Presumably the legislature was aware of the effects of
inflation and could have opted for some cap indexed to inflation.
That the legislature did not index the cap to inflation but set forth an
absolute dollar amount does not render the cap unconstitutional. As
observed in Smith[ v. City of Philadelphia, 516 A.2d 306, 309-10
(Pa. 1986)], the purpose of the cap was to protect the public fisc;
with the passage of time, and the consequent decrease in the value
of the absolute dollar figure, simply because the $250,000 cap better
promotes this purpose today than in 1978 is no reason to declare it
unconstitutional.
9
number of expert reports; $1,492.27 for medical records; $1,585.00 for trial
technology services; and $957.14 spent for court filings, service, and messenger
fees). Moreover, as outlined above, the Supreme Court specifically rejected a claim
based on a diminution in recovery as a basis for the trial court to find a violation of
Plaintiff’s right to a jury trial as guaranteed by article I, section 6.
Likewise, with respect to the article I, section 11 claim, the Supreme
Court observed:

The General Assembly . . . acted within its
constitutional authority provided in [a]rticle I, [s]ection
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. . . . 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[ v. City of
Philadelphia, 516 A.2d 306, 309-10 (Pa. 1986)], the
General Assembly also properly acted within its [s]ection
11 authority when it adopted the damages cap in actions
against local governments in Section 8553 of the [Judicial
Code.] Appellant has not advanced any convincing
argument why Smith should be overruled, or that the cap
clearly, palpably, and plainly violates [s]ection 11.
Zauflik, 104 A.3d at 1128. See also Smith, 516 A.2d at 309 (“If the legislature may
abolish a cause of action, surely it may also limit the recovery on the actions which
are permitted. To hold otherwise would be, in our view, to grant with one hand what
we take away with the other. Such a result would be absurd, or at least,
unreasonable. We conclude, therefore, that [a]rticle I, [s]ection 11 should not be
read to prohibit the Legislature from enacting a limit on the tort liability of its
political subdivisions.”).

10
 Plaintiff also contends that her inability to ultimately obtain any
financial recovery based on her injuries flowing from SEPTA’s admitted negligence
translates into an article I, section 11 violation. See Plaintiff’s Brief at 10 (“In
[Plaintiff’s] case, Section 8528 fails intermediate scrutiny as the cap is no longer
‘substantially related’ to achieving the twin governmental interests underpinning the
[Judicial Code] of providing compensation to injured people and protecting the
public purse. For [Plaintiff], the [Judicial Code] only protects the government. She
obtains no compensation at all.”).
However, “[t]his Court, as an intermediate appellate court is bound to
follow the majority opinions of our Supreme Court . . . .” In re Ross, 109 A.3d 781,
785 (Pa. Cmwlth.), aff’d sub nom. In re Substitute Nomination Certificate of Ross,
101 A.3d 1150 (Pa. 2014). See also Griffin, 757 A.2d at 451 (“[W]e, as an
intermediate appellate court are bound by the decisions of the Pennsylvania Supreme
Court and are powerless to rule that decisions of that Court are wrongly decided and
should be overturned. See, e.g., Nunez v. Redevelopment Authority of the City of
Philadelphia, [609 A.2d 207, 209 (Pa. Cmwlth. 1992)] (‘as an intermediate appellate
court, we are bound by the opinions of the Supreme Court.’).”).
Indeed, as this Court has explained:

[I]t was well settled that the decisions of the Supreme
Court were regarded as the law to be followed by inferior
courts whatever the view of the latter may be as to their
wisdom or justness.

***

As our judicial system has been restructured by the
1968 Pennsylvania Constitution and the implementing
[predecessor to Section 8 of the Act of July 9, 1976, P.L.
586, No. 142], we are unable to discern in these provisions
any expressed intent upon the part of the electorate or the
11
 General Assembly to depart from this well-established
rule which lends uniformity and certainty to the law but
allows sufficient flexibility for change by the highest
court, but only the highest court, in our judicial system.
Lovrinoff v. Pennsylvania Turnpike Commission, 281 A.2d 176, 177-78 (Pa.
Cmwlth. 1971) (citations omitted).11
Likewise, as the Pennsylvania Superior Court has stated:

As an intermediate appellate court, this Court is obligated
to follow the precedent set down by our Supreme Court.
Foflygen v. Zemel, [615 A.2d 1345, 1353 (Pa. Super.
1992)]. It is not the prerogative of an intermediate
appellate court to enunciate new precepts of law or to
expand existing legal doctrines. Such is a province
reserved to the Supreme Court. Malinder v. Jenkins
Elevator & Machine Co., [538 A.2d 509, 513 (Pa. Super.
1988)]. As we have also said in an earlier case:

It may be, as has been suggested, that the
Supreme Court, as the policy making court in
this Commonwealth, will choose to make it
easier to toll the statute of limitations. In the
meantime, this Court, being an error

11
See also Pa. Const. art. V, §1 (“The judicial power of the Commonwealth shall be vested
in a unified judicial system consisting of the Supreme Court, the Superior Court, the
Commonwealth Court, courts of common pleas, community courts, municipal courts in the City
of Philadelphia, such other courts as may be provided by law and justices of the peace.”); Pa.
Const. art. V, §2 (“The Supreme Court [] shall be the highest court of the Commonwealth and in
this court shall be reposed the supreme judicial power of the Commonwealth.”); Pa. Const. art. V,
§10(a) (“The Supreme Court shall exercise general supervisory and administrative authority over
all the courts and justices of the peace . . . .”); Section 501 of the Judicial Code, 42 Pa. C.S. §501
(“The [Supreme C]ourt shall be the highest court of this Commonwealth and in it shall be reposed
the supreme judicial power of the Commonwealth.”); Section 502 of the Judicial Code, 42 Pa. C.S.
§502 (“The Supreme Court shall have and exercise the powers vested in it by the Constitution of
Pennsylvania, including the power generally to minister justice to all persons and to exercise the
powers of the [C]ourt, as fully and amply, to all intents and purposes, as the justices of the Court
of King’s Bench, Common Pleas and Exchequer, at Westminster, or any of them, could or might
do on May 22, 1722. The Supreme Court shall also have and exercise . . . [a]ll powers necessary
or appropriate in aid of its original and appellate jurisdiction which are agreeable to the usages and
principles of law[, and t]he powers vested in it by statute, including the provisions of this title.”).
12
 correcting court, will affirm trial court
decisions which are in accord with principles
of law adopted by prior appellate court
decisions.

Aivazoglou v. Drever Furnaces, [613 A.2d 595, 600 (Pa.
Super. 1992)].
Moses v. T.N.T. Red Star Express, 725 A.2d 792, 801 (Pa. Super. 1999).
In this case, Plaintiff is asserting that the trial court erred in failing to
adopt the late Chief Justice Baer’s minority position in his Concurring Opinions in
Zauflik and Grove, and in failing to determine the appropriate criteria upon which
Plaintiff may rely “to establish that the statutory damages cap constitutes an onerous
procedural barrier to [her] jury trial right in violation of [a]rticle I, [s]ection 6.”
Zauflik, 104 A.3d at 1134 (Baer, J., concurring). See Plaintiff’s Brief at 39 (“Given
this factual landscape, it is apparent that [Plaintiff’s] circumstances trigger the
concerns identified in the Zauflik and Grove concurrences and fall within the
conceptual framework developed in the Parker [v. Children’s Hospital of
Philadelphia, 394 A.2d 932, 938 (Pa. 1978),] and Mattos [v. Thompson, 421 A.2d
190 (Pa. 1980)] decisions.”);12 Plaintiff’s Brief at 54 (“[I]t cannot be said that Section
8528(b) is substantially related to any purported governmental [interest] in
compensating victims while also protecting the public purse. At this point . . . the
cap only protects the Commonwealth. Compensation is out the window.
Accordingly, the cap violates the Remedies Clause under intermediate scrutiny as
applied in Yanakos [v. UPMC, 218 A.3d 1214, 1219-20, 1233-37 (Pa. 2019).”).

12
Plaintiff’s reliance on the Supreme Court’s analyses in Parker and Mattos is misplaced.
Those cases involved the constitutionality of the relevant former medical malpractice statutes and
not, as in this case, the Judicial Code provisions voluntarily waiving the Commonwealth’s
sovereign immunity in the expressly limited circumstances.
13
 However, assuming that the numbers in Plaintiff’s filed exhibits are
accurate, both the trial court and this Court, as an intermediate appellate court, are
bound by the Majority Opinion in Zauflik in which the Supreme Court rejected the
argument that the mere reduction in recovery is a basis upon which the foregoing
constitutional violations may be found. In short, the trial court did not err in granting
SEPTA’s Motion to Mold the verdict based on the Majority Opinion in Zauflik.13
We are mindful of the harsh result that flows from our decision, and we
are empathetic to Plaintiff’s desire to recover the stipulated damages for her
unquestionably tragic injuries. Nevertheless, as in Zauflik, this Court is compelled
to affirm the trial court’s order molding the verdict to conform to the constitutionally
valid provisions of Section 8528(b) of the Judicial Code unless and until a Majority
Opinion of the Pennsylvania Supreme Court provides the trial court and this Court
with a basis upon which to do otherwise. See Zauflik, 104 A.3d at 1128-29 (“As this
Court held in Smith, the General Assembly also properly acted within its [s]ection
11 authority when it adopted the damages cap in actions against local governments
in Section 8553 of the [Judicial Code]. 516 A.2d at 309-10. [The plaintiff] has not
advanced any convincing argument why Smith should be overruled, or that the cap
clearly, palpably, and plainly violates [s]ection 11.”); id. at 1133 (“[T]he 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. [The plaintiff]
has not met her burden of establishing that the [Judicial Code’s] damages cap clearly,
palpably and plainly violates [a]rticle I, [s]ection 6.” (emphasis in original)).14

13
In this appeal, Plaintiff does not claim or develop an argument demonstrating that the
trial court erred in denying her Motion for Delay Damages.

14
See also Zauflik, 104 A.3d at 1133, wherein the Supreme Court stated the following:
(Footnote continued on next page…)
14
 After reviewing the record, Plaintiff’s brief and oral argument, and the
relevant case law, we conclude that the appellate issues have been ably resolved in
the thorough and well-reasoned opinion of Judge James C. Crumlish, III.
Accordingly, we affirm the trial court’s order on the basis of his opinion in the matter
of Freilich v. Southeastern Pennsylvania Transportation Authority (C.P. Phila., No.
180600401, filed February 3, 2022).

MICHAEL H. WOJCIK, Judge

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 [Judicial Code],
and therefore affirm the order of the Commonwealth Court.

(Emphasis added.)
15
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hayley Freilich, :
:
Appellant :
:
v. : No. 327 C.D. 2022
:
Southeastern Pennsylvania :
Transportation Authority :

ORDER

AND NOW, this 6th day of July, 2023, the order of the Philadelphia
Court of Common Pleas is AFFIRMED.

__________________________________
MICHAEL H. WOJCIK, Judge
0056_ORDER_AND_OPINION_FILED

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CIVIL

HAYLEY FREILICH,
CIVIL ACTION
Plaintiff,

v.
No. 180600401
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY, Control No. 21111457
21111633
Defendant.

ORDER

AND NOW, this 3rd day of February, 2022, upon consideration of the Motion of Plaintiff

Hayley Freilich for Delay Damages and Defendant SEPTA's opposition thereto, and the Motion

of Defendant SEPTA for Post Trial Relief in the form of molding of the verdict to comply with

the statutory damages cap of $250,000.00 pursuant to 42 Pa. C.S.A. §8528 and Plaintiffs

Freilich's opposition thereto, it is hereby ORDERED and DECREED that Defendant SEPTA's

Motion is GRANTED for the reasons stated in the court's Memorandum Opinion attached hereto

and filed herewith. It is further ORDERED that Plaintiffs Motion for Delay Damages is

DENIED for the reasons in the court's Memorandum Opinion.

BY THE COURT:

180600401-F re1/rch V
s Southe;isfern p
Crumlish, III, J.

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COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) C. FORTE 03/04/2022
 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CIVIL

HAYLEY FREILICH,
CIVIL ACTION
Plaintiff,

v.
No. 180600401
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY, Control Nos. 21111457
21111633
Defendant.

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the court is Plaintiff Hailey Freilich's Motion for Delay Damages in the

amount of$892,979.45 on the Stipulated Jury Verdict amount of $7 million dollars in this matter

and Defendant SEPTA's Motion to Mold the Verdict in accordance with the Statutory "cap" on

damages in actions brought against governmental entities under the Pennsylvania Tort Claims

Act, 42 Pa. C.S.A. §8553(b). SEPTA opposes Delay Damages on the ground that six weeks after

Plaintiff filed the Complaint, SEPTA offered Plaintiff the full amount of the $250,000 statutory

cap that SEPTA asserted that she was entitled to recover against it. Even assuming no offer to

settle, SEPTA would oppose the delay damages because such damages are subject to its Motion

to mold the verdict. Plaintiff Freilich opposes the molding of the verdict, not because the motion

lacks a legal basis but because she asserts that the cap violates or constrains her fundamental

Constitutional rights so severely as to nullify her rights, making the application of the cap to her

case unconstitutional. Plaintiffs arguments are grounded principally upon the possibility
Pennsylvania Supreme Court may viate the application of the cap as applied to the facts of this

action relying on , inter a/ia, that then Justice, now Chief Justice, Baer recognized as dicta in

Zaujlikv. Pennsbury School District, 629 Pa. 1, 64, 104 A.3d 1096, 1134 (2014) that a "properly

developed record" might "establish that the statutory damages cap constitutes an onerous

procedural barrier to the jury trial right in violation of Article I, Section 6" of the Pennsylvania

Constitution. As an example of such a barrier, the concurrence in Zaujlick cites Application of

Smith, 112 A.2d 625 (Pa. 1955), where a statute and local rule of court required that claims under

a certain dollar amount proceed through compulsory arbitration, the cost of which, in the form

the required payment to appeal from the compulsory proceeding was payment of the arbitrators'

fee, exceeded the amount of the recovery sought. Thus, Plaintiff invites the court to determine

here whether the record before this trial court evinces the type of procedural barrier that, in

Plaintiffs view under the concurrence and argued majority of justices who at one time or

another have agreed with the argument, compels this court to now declare Supreme Court

precedent as to the cap inapplicable and reach a substantive ruling by this court that the

imposition of the cap in this case "unconstitutional."

Plaintiff has compelling facts on her side, now subject to a stipulated verdict-through no

fault of her own, a SEPTA driver, who immediately admitted fault, caused her a catastrophic

injuries, with lifelong pain and suffering and with a life-altering permanent loss of her foot,

extensive medical bills and projected overwhelming and extensive future medical costs. The

parties stipulated that a jury verdict in this case was $7 million dollars, which verdict this court

entered into the record. For purposes of this case before the Court, that number would be the

indisputably a full and fair award and deference to a full presumed full and fair consideration of

the Jury and of all the factors otherwise recoverable as a matter of law,

2
In opposition to SEPTA's Motion for Post-Trial Relief to Mold the Verdict, Plaintiff presented

hundreds of pages of records reflecting medical and insurance liens on any recovery she might

obtain. Plaintiff also outlines in their brief the amounts that were expended to prepare the case

for trial and this resulting verdict, which amounts were set forth by counsel at the oral argument

on the record. (A copy of the transcript of the argument is attached to this Opinion). Defendant

SEPTA did not dispute that Plaintiff incurred these costs; we will consider them as accurate.

The court is mindful of the profound economic inequity of the recovery provided under

the application of the limitations of Tort Claims Act to the recovery Plaintiff might similarly

have against a private Plaintiff against a non-governmental tort feasor , a harsh reductive

calculation that is plainly untethered to the undisputed catastrophic injuries to Plaintiff.

However, regretfully, as the Supreme Court majority noted in Zauflik:

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 plaintiffs right to seek to have the merits of her
cause determined by a jury, rather than some other process.

629 Pa. at 62, 104 A.3d at 1132. The question presented in Plaintiffs opposition to the

Defendant's Motion to Mold the Verdict is positioned as whether the facts in the record here in

this matter are so unique as to distinguish Pennsylvania Supreme Court precedent addressing the

statutory cap and to permit this court to make decision abrogating existing constitutional

decisions of the appellate courts as a matter of law in this particular case addressing the motions

before it.

II. Plaintiffs Challenge to the Cap as a Basis to Mold the Verdict

Plaintiff contends that she has substantively met all the factual and legal challenges posed

in Chief Justice Baer' s concurrence in Zauflik by outlining the undisputed substantial costs of

3
bringing this matter to a successful verdict and demonstrating the resulting negative recovery

that would be available to her under the application of the cap after the incursion of those costs

(presumed by the verdict to be reasonable) and the health care cost liens attached to any

recovery. Procedurally, Zauflik differs from this case insofar as the expenditures in question

arose from pre-trial preparation and the trial before a jury on damages of this undisputed facts of

Plaintiffs claims. In addition, the record in Zauflik contained evidence that the defendant

maintained available substantial commercial liability insurance coverage (albeit not for motor

vehicle accidents), which Plaintiff argued the defendant could obtain ultimately infuturo to

address the payment of damages to accident victims. The record as to the availability of

commercial healthcare insurance and the potential dire impact to governmental entities of

uncapped verdicts was not fully developed nor easily addressed in the context of an adversarial

proceeding. ("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." 629 Pa. at 45, 104 A.3d at 1122).

Plaintiff further points to the recent concurrence of Chief Justice Baer in Grove v. Port

Authority ofAllegheny County, 655 Pa. 535, 218 A.3d 877, (2019), noting the legislative failure

to rectify the concerns expressed in Zauflik as to the potential that the Supreme Court might be

faced with a case in which a plaintiff might "establish that the statutory caps place an onerous

burden on his or her right to a jury trial, [whereupon] 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." 218 A.3d at 892. Three justices joined in this concurrence.

4
Additionally, Plaintiff notes that Justice Todd previously joined in Chief Justice Baer's

concurrence in Zauflik, inferring that a court majority favors her position.

Plaintiff outlines in their Argument without substantive objection by Defendant the

tremendous costs for expert services, medical records and trial technology in the brief (Id. at p. 3

and on the record at the hearing), which costs are asserted to "burden plaintiffs ability to present

an issue to a jury" as they represent an "onerous condition" which, along with counsel's fee,

"make the jury trial right practically unavailable." Zaujlik concurrence, 104 A.3d at 1134 citing

Application ofSmith, 112 A.2d 625 (Pa. 1955).

III. ANALYSIS

Plaintiffs constitutional challenge asserts that the specific factual record here that

demonstrates the requisite "onerous condition" contemplated in Application ofSmith. However,

the cases in which the Court actually invalidated a provision on this basis all involved procedural

impediments precluding the bringing of a case to a jury. Application ofSmith involved a

compulsory arbitration scheme that required payment of a substantial fee to perfect an appeal to

ajury trial. In Matos v. Thompson, 491 PA. 385, 421A.2d190 (1980) the Supreme Court

determined that an arbitration process for medical malpractice claim initially upheld as

constitutional was fraught was so many interminable delays as to become unconstitutional in

practice. More recently, in Yanakos v. UPMC, 655 Pa. 615, 218 A.3d 1214 (2019), the Supreme

Court considered the validity of a statute of repose in medical malpractice cases that operated as

a bar to suit after seven years, which exempted claims beyond seven years brought against

medical device manufacturers. Plaintiffs in Yanakos challenged the provision under the

remedies clause of the PA Constitution in Article 1, section 11. The Court consensus inherent in

plurality is that the right to a remedy in a suit against a private individual involved at least an

5
important, if not fundamental, right, the denial of which in the one situation did not meet the

law's purported justification under an intermediate scrutiny analysis (required in the case of a

important right). However, the Court went out of its way to distinguish lawsuits against the

Commonwealth or government entities, where the remedies clause did not confer a fundamental

right. The Court's analysis informs the inquiry here. Although the Plaintiff did not advance a

right to jury trial argument, it is clear that the limitation in the statute of repose was a procedural

impediment to obtaining a jury trial, not a post-verdict cap on damages.

The Supreme Court in Zauflik specifically considered and rejected at the time the

argument that the cap unconstitutionally impaired the right to a jury trial guaranteed by the

Pennsylvania Constitution in Article 1, section 6, the principal argument that Plaintiff makes

here. The Court held: "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." 629 Pa. at 62, 104 A.2d at 1132.

Then Justice Baer 'join[ed] the finely crafted majority opinion in its entirety." Id. at 64, 104

A.2d at 1134. The subsequent decision in Grove does not alter this holding in any way-Grove

did not involve a challenge to the constitutionality of the cap, but rather whether the trial court

properly charged the jury on Plaintiffs contributory negligence. While the verdict, even

considering the reduction for Plaintiffs negligence exceeded the cap, the question before the

Court was propriety of granting the defendant a new trial based upon an insufficient jury

instruction. The cap issue was neither briefed nor argued by the parties. This court cannot

resolve the issue and facts specifically before it on the basis of a case in which the claims made

here which were not before the Supreme Court, even in the face of Chief Justice Baer's

concurrence and express serious concerns about legislative inaction. Moreover, the Chief Justice

6
and the Court, regrettably, has not provided specific guidance to this trial court as to what

constitutes a "properly constructed" record or a "fully developed challenge." 1

This court cannot wade into the debate about whether the disposition of Plaintiffs

constitutional challenge is more conclusively a matter for the court or the legislature. As a trial

court charged simply with the resolution of the facts before it in accordance with existing law

under principles of stare decisis, this court can only discern the law and precedent applicable to

the legal issues in front of it apply them and adjudicate the matter accordingly. At this stage,

despite the number of well-reasoned concurrences, the Supreme Court in Zauflik has resolved

every Constitutional challenge raised herein against the Plaintiffs position, in a case involving

remarkably similar claims of catastrophic injuries and drastic reduction of the verdict to conform

to the limitations of the cap.

The court agrees that the record demonstrates that the imposition of the cap to this

plaintiff in light of her catastrophic injuries is profoundly unfair if not unconscionable as applied

here. However, unfairness does not necessarily equate as a matter of law with an

unconstitutional exercise of legislative power or an impediment to the right to try the case to a

jury.

1
Chief Justice Baer recognized the possibility of plaintiffs incurring prohibitively discouraging
costs, based on thirteen years as a trial judge, that counsel in a complex litigation might be
required incur to "retain multiple liability and damages experts who are, in tum, mandated to
develop their theories to a reasonable degree of certainty, provide detailed expert reports, sit for
depositions, and often provide live testimony at the cost of tens of thousands of dollars." The
Chief Justice does not guide us on how a governmental defendant's "concession" to liability at
the outset of the litigation alters this landscape or how this general notion of the cost of litigation
three decades into the twenty-first century justifies a trial court engaging in policy considerations
underlying the Constitutionally authorized limitation on governmental immunity adopted in the
Tort Claims Act.
7
 Plaintiffs actuarial expert ably demonstrates the equivalence of the cap amount (of

$250,000) in today's dollars ($897,600), a number that SEPTA does not dispute. As compelling

as the Plaintiffs arguments are here and recognizing the inflationary diminution of the effect of

soaring healthcare expenses, especially in light of Plaintiffs catastrophic injuries, this trial court

is not a legislative or policy-making body and cannot substitute its judgment for that of the

legislature or controlling law. In Yanakos, Chief Justice Baer joined in the dissent of Justice

Wecht (also joined by Justice Saylor) in which he noted: "it is not this Court's role to upend duly

enacted legislation simply because we might sometimes deem it imperfect or unwise" and rejects

the notion that "Article I, Section 11 of the Pennsylvania Constitution, ... provides that every

person who suffers an injury 'shall have remedy by due course of law[.]'" 218 A.3d at 1238.

Fundamentally, the Court is bound by the structures in the analysis of the Supreme Court

majority in Zauflik as to the validity of the damages cap (as stated in part earlier in this opinion):

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 plaintiffs 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, 491 Pa. 385, 421A.2d190 (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). 629 Pa. at 61-62, 104 A.3d at 1132.

Zauflik considered virtually every one of the arguments that Plaintiff makes here. The court does

not find the facts in the sufficient to release this court from the precedential weight of Zauflik.

8
 On this record, this trial court has a prescribed role, a role that does not permit it,

however heart wrenching or compelling a circumstance, to engage in judicially "coloring outside

the lines," criticizing the law-making body, engaging in political philosophic disagreements,

applying new judicial standards of review or usurping the proper exercise of the ultimate

responsibilities of the appellate courts. For those reasons and following applicable precedent, the

court must follow the applicable legislative restrictions and mold the verdict in accordance with

SEPTA's Motion for Post-Trial Relief. Plaintiffs Motion for Delay Damages would lead to an

unenforceable recovery in excess of the cap. The court will enter an order granting SEPTA's

Motion to Mold the Verdict and Denying Plaintiffs Motion for Delay Damages.

9
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hayley Freilich, :
Appellant :
:
v. : No. 327 C.D. 2022
: ARGUED: March 6, 2023
Southeastern Pennsylvania :
Transportation Authority :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

CONCURRING OPINION BY
SENIOR JUDGE LEADBETTER FILED: July 6, 2023

I concur in the result reached by the majority in its well-reasoned
opinion because we are, without doubt, bound by the decisions of our Supreme
Court, including Zauflik v. Pennsbury School District, 104 A.3d 1096 (Pa. 2014).
Nevertheless, I believe that the undisputed averments concerning Ms. Freilich’s
actual damages, as well as the costs and liens burdening any recovery against
SEPTA, clearly establish that the statutory limitation on recoverable damages
against state agencies amounts to a violation of the Remedies Clause of the
Pennsylvania Constitution1 in Ms. Freilich’s case, as well as the right to trial by jury2
for most plaintiffs who suffer similar catastrophic injuries.3
As the majority notes, in Zauflik, when our Supreme Court upheld the
constitutionality of the similar $500,000 cap4 on damages against municipal
agencies, Justice (later Chief Justice) Baer, joined by (now Chief) Justice Todd and
(then) Justice Stevens, in a right to counsel challenge, opined:

While there is no evidentiary record concerning the costs
and fees incurred to prosecute the instant litigation, I
believe 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.

....

In accord with the [Application of ]Smith[, 112 A.2d 625
(Pa. 1955)] analysis, assuming an evidentiary proffer that
$500,000 would not cover costs and fees incurred in

1
Pa. Const. art. I, § 11 (“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.”).

2
Pa. Const. art. I, § 6 (“Trial by jury shall be as heretofore, and the right thereof remain
inviolate.”).

3
While this case clearly demonstrates that the statutory cap poses a real threat of violating the
right to counsel in any case involving catastrophic injuries, I do not believe we could give Ms.
Freilich individual relief on that basis since this is an as-applied challenge, and Ms. Freilich did,
in fact, obtain highly competent and effective counsel. Her attorney’s credible averment that his
firm accepted her representation in order to make this constitutional challenge does not show that
she actually suffered a deprivation of the right to counsel, only that, ironically, pursuing this case
on her behalf defeated the purpose of the pursuit.

4
Obviously, the fact that the cap at issue here is only half that considered in Zauflik serves
only to strengthen the constitutional claims asserted here.

BBL - 2
 pursuing complex personal injury litigation, it would
appear that the statutory cap presents an “onerous
procedural barrier” to an injured plaintiff’s guaranteed
right to a jury, and, thus, violates Article I, Section 6[ of
the Pennsylvania Constitution]. We must, however, await
the development of a record before so holding.

....

Accordingly, it is my hope that this case will serve as an
impetus for legislative action to increase the $500,000
limitation on recovery from political subdivisions before
this Court is constrained to analyze this issue on a record
developed in accord herewith.

Zauflik, 104 A.3d at 1134-36 (Baer, J., concurring). Essentially, these concurring
Justices, and perhaps even those in the majority, exhibited sound judicial restraint,
deferring to the General Assembly’s preeminent role in such matters. However, nine
years have passed and the General Assembly has turned a deaf ear to Justice Baer’s
prescient comments and his urging of our legislature to correct the wrong to which
he alluded. At this point, it would appear clear that it will not do so of its own accord
at any time in the foreseeable future. I would urge our Supreme Court to analyze
both the deprivation of the right to trial by jury and the deprivation of rights under
the Remedies Clause illustrated by the undisputed averments presented here and
suspend the cap until the General Assembly takes meaningful and adequate
corrective action to remedy this constitutional wrong. Such an approach serves the
dual purpose of fulfilling the obligation of the judiciary to protect and preserve our
Constitution while according deference to the prerogative of the legislature to craft
a statutory remedy.

_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita

BBL - 3