Could Change be Coming to Pennsylvania’s Cap on State Damages?

By Robyn D. Kazatsky

April 11, 2023

Currently, Pennsylvania law caps the state’s liability at $250,000 per individual and local government’s liability at $500,000 per incident.  These limits have been in place since their creation in 1978.  But that could change if the plaintiffs’ bar finally convinces the State’s highest court the statute is unconstitutional.  On Monday, March 6, 2023, a three-judge Commonwealth Court panel heard argument in Freilich v. SEPTA that the state’s cap on damages is “grossly unfair.”  Counsel for appellant stated that he believes the case will ultimately be heard by the Pennsylvania Supreme Court, whom he predicts will find in his favor.  Previously, counsel stated “I believe the cap is so grotesquely unjust and so obviously unconstitutional that there will come a day when the Supreme Court will agree with my now 22-year odyssey to have the court agree formally.”

The argument before the Commonwealth Court came after the Pennsylvania Supreme Court declined to fast-track Freilich’s challenge to Pennsylvania’s liability cap for state agencies on August 11, 2022, when Freilich filed an application for extraordinary relief, seeking to appeal a Philadelphia judge’s reduction of a $7 million verdict directly before the justices.  In Freilich, the parties reached a $7 million stipulated verdict with SEPTA in October 2021, in which SEPTA admitted negligence for injuries sustained in a bus crash. However, pursuant to the state liability cap, SEPTA moved to mold the award to $250,000, which Philadelphia Judge James Crumlish III agreed he was bound to do in March 2022, despite noting in his opinion that the reduction was “profoundly unfair if not unconscionable.”

It comes as no surprise that the plaintiffs’ bar is trying once again to challenge the state’s cap on damages as it tried to do previously in Zauflik v. Pennsbury School District in 2014.  In that case, a 2011 trial ended in a $14 million jury verdict.  When the School District requested that the Court mold the jury verdict to $500,000 in accordance with the Political Subdivision Tort Claims Act (42 Pa. C.S. Section 8553), Zauflik opposed the District’s motion to mold the verdict on the grounds that the Tort Claims Act violated the Pennsylvania and United States Constitutions both facially and as applied, and filed a motion that the verdict not be molded and judgment be entered based on the original verdict.  Ultimately, the Court reduced the verdict to $500,000, acknowledging in its Memorandum Opinion “that the circumstances of this case create an unfair and unjust result” but that the statutory limitation on damages for a local agency pursuant to Section 8553(b) of the Tort Claims Act required the trial court to reduce the jury verdict by 96% from $14,036,263.39 to $500,000. 

While the Pennsylvania Supreme Court upheld the government liability cap in Zauflik, several justices wrote a concurrence inviting an as-applied challenge.  On March 6, 2023, SEPTA’s counsel argued that nothing in the Freilich case would create a different outcome from Zauflik as it did not present an as-applied challenge showing the cap held Freilich back from litigating her case, but the panel did not necessarily agree with his sentiments.  That said, while Senior Judge Bonnie Brigance Leadbetter told appellant’s counsel his arguments were persuasive, she still expressed wariness at the variability of awards across the board if matters were decided on a case-by-case basis.   

At this point, only time will tell.

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