Limit upheld on damage awards to government entities, but challenge likely

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The Commonwealth Court has upheld a $500,000 statutory limit on damage awards against governmental entities, setting up the constitutional challenge for possible resolution by the state Supreme Court.

The panel decision effectively wipes out most of a $14 million award reached by a Bucks County jury to plaintiff Ashley Zauflik for the loss of her leg and pelvic injuries after a school bus driver hit the accelerator instead of the brake, striking her while she was standing on the sidewalk.

Ms. Zauflik, who had been standing with a group of students, was the most catastrophically injured when the bus jumped the curb. From a jury, she was awarded more than $338,000 in past medical costs, $2.6 million in future medical expenses and $11.1 million in damages for pain and suffering.

But Ms. Zauflik's award was molded to conform with the $500,000 statutory cap under the Political Subdivision Tort Claims Act on damages owed by governmental entities.

The Commonwealth Court ruled 2-1 against Ms. Zauflik, who was a student at the time of the accident in 2007, and is now 23. Judge Renee Cohn Jubelirer said the circumstances of the case are tragic but "we are constrained by the precedential case law that has previously upheld the constitutionality of the statutory cap of the Tort Claims Act multiple times.

"It is the role of the General Assembly, not this court, to make the difficult policy decisions and enact them into law if such decisions receive the support of the necessary majority."

Judge Dan Pellegrini joined Judge Jubelirer's opinion.

In dissent, Senior Judge Rochelle S. Friedman said that the cap may have infringed on Ms. Zauflik's constitutional right to juries in civil cases and that she would find the cap unconstitutional as it applies to Ms. Zauflik.

"This constitutional provision anticipates that a jury's award will not be hollow and that, in the event of a monetary award for a plaintiff, he or she will be entitled to receive the full benefit of the award," the dissent said.

Ms. Zauflik's counsel, Tom Kline of Kline & Specter, argued that the cap violates the state constitution in several ways, including the provision guaranteeing open courts to Pennsylvania citizens; the provision against capping compensatory damages except for cases involving workers' compensation; the provision vesting judicial power in the Unified Judicial System; the provision guaranteeing the right to have one's case heard by a jury; and the state constitution's equal protection clause.

The plaintiff also argued that the cap violated her federal Constitution rights to equal protection and due process.

Among other binding precedent, Judge Jubelirer wrote, is Carroll v. County of York, in which the Supreme Court held that it was a rationally based legislative judgment to make political subdivisions immune from liability even though the plaintiff in that case was barred entirely from recovery for her son's suicide while in the custody of a county detention home.

On the equal protection argument, Ms. Zauflik said the court should weigh whether the interests in the case should be rebalanced considering the district was able to purchase an excess insurance policy.

But while "the very tragic circumstances of this case weigh heavily on this court ... as an intermediate appellate court confronting significant and unwavering precedent, our role must be one of restraint," Judge Jubelirer continued.

Mr. Kline said his firm will seek a direct appeal to the Supreme Court. There is an issue of first impression regarding the separation of powers issue and Judge Friedman "hits the nail on the head in her dissent" discussing a violation of the right of trial by jury, Mr. Kline said.

All three judges upheld the $5,000 sanction awarded by Bucks County Court of Common Pleas Judge Robert J. Mellon because the school district did not disclose timely the existence of an excess insurance policy in the amount of $10 million.

Judge Jubelirer said that the sanction was not an abuse of discretion and that the court could not sanction a political subdivision by ordering an express waiver of absolute governmental immunity.

"It's apparent from the language and content of all three opinions, Judge Mellon, Judge Jubelirer joined by Judge Pellegrini as well as Judge Friedman's dissent, every judge who now reviewed this case is troubled by the cap," Mr. Kline said.

One of the school district's counsel, Thomas G. Wilkinson of Cozen O'Connor, said it is a "thorough and thoughtful opinion that is completely consistent with the previous Supreme Court precedents in this area."


Amaris Elliott-Engel: or 215-557-2354. Visit


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