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decided: June 26, 1975.



David S. Shrager, Farage & Shrager, Philadelphia, for appellant.

Gerald Gornish, Deputy Atty. Gen., Dept. of Justice, Harrisburg, for appellee.

John G. Harkins, Jr., Philadelphia, Fred Speaker, Pepper, Hamilton & Scheetz, Harrisburg, for amicus curiae.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion in which Pomeroy, J., joins in part. Nix, J., filed a concurring opinion. Eagen, J., filed a dissenting opinion. O'Brien, J., filed a dissenting opinion. Manderino, J., filed a dissenting opinion.

Author: Jones

[ 464 Pa. Page 391]


On July 19, 1974, Governor Shapp signed into law House Bill 1973, the Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. --, No. 176, 40 P.S. § 1009.101 et seq. (hereinafter No-fault Act). By the enactment Pennsylvania joined the growing number of jurisdictions which have accepted some form of no-fault automobile insurance.

Some four months later, plaintiff, as representative of all others similarly situated, challenged the constitutionality of the No-fault Act by commencing an action in equity and petitioning for a declaratory judgment.*fn1 Simultaneously,

[ 464 Pa. Page 392]

    plaintiff sought the assumption by this Court of plenary jurisdiction.*fn2

After first denying the petition for plenary jurisdiction, we granted the plaintiff's amended petition limited, however, to the issue of the constitutionality of Section 301(a) of the No-fault Act.*fn3

[ 464 Pa. Page 393]

Plaintiff advances three arguments to support his contention that Section 301(a) fails to meet constitutional muster. First, he maintains that the section violates Article III, Section 18, of the Pennsylvania Constitution, P.S., because it limits the damages recoverable by motor vehicle accident victims. Next, he argues that the section violates Article I, Section 11, of the Pennsylvania Constitution because it denies certain accident victims recourse to the courts of the Commonwealth. Finally, he asserts that the section violates the equal protection clause of the Fourteenth Amendment to the United States Constitution because it establishes unreasonable classifications among motor vehicle accident victims.

Any discussion of the constitutionality of lawfully-enacted legislation must commence with the restatement of the principle of law which creates a "presumption" in favor of constitutionality. "An Act of Assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution." Daly v. Hemphill, 411 Pa. 263, 271, 191 A.2d 835, 840 (1963). "[T]he burden rests heavily upon the party seeking to upset legislative action on constitutional grounds; all doubt is to be resolved in favor of sustaining the legislation." Milk Control Commission v. Battista, 413 Pa. 652, 659, 198 A.2d 840, 843 (1964).*fn4 See also Glancey v. Casey, 447 Pa. 77, 288 A.2d 812 (1972). With the abovequoted principle firmly in mind and for the reasons set out below, we disagree with plaintiff's arguments and sustain the constitutionality of Section 301(a) of the No-fault Act.

[ 464 Pa. Page 394]


The parties to this action have very carefully considered the historical cause for Article III, Section 21, of the Constitution of 1874, the predecessor to the present Article III, Section 18. With them we agree that a complete understanding of the section and the boundaries of its proscription is impossible without some historical background.

By the Act of April 4, 1868, P.L. 58, the General Assembly limited the maximum amount recoverable by a plaintiff in a negligence action against a common carrier to $3,000 for personal injuries and $5,000 for injuries resulting in death. The Constitutional Convention of 1872-73 specifically addressed itself to the Act of 1868.*fn5 Ultimately the Convention drafted and the people accepted Article III, Section 21.*fn6

In 1915 the section was amended to permit the enactment of a Workmen's Compensation Act.*fn7 It is that amended section which concerns us now.*fn8

[ 464 Pa. Page 395]

The pertinent portion of the present damage limitation provisions states:

"The General Assembly may enact [workmen's compensation laws] . . . but in no other cases shall the General Assembly limit the amount to be recovered. . . for injuries to persons . . . ." (Emphasis added).

Plaintiff very strenuously, artfully and competently contends that subsection 5 of Section 301(a) unconstitutionally limits the losses recoverable by certain automobile accident victims. That subsection eliminates as a compensable item of damages the "non-economic detriment" incurred by the injured party unless the injured party can place himself or herself within several excepted classifications. Since some individuals' recoverable

[ 464 Pa. Page 396]

    damages are limited to their economic losses, their recovery for their total actual damages is incomplete to the extent they remain uncompensated for non-economic injury.*fn9 Hence, plaintiff maintains that Article III, Section 18, is violated.

As we have seen, however, Article III, Section 18, was drafted and approved to invalidate the Act of April 4, 1868, and to prevent the passage of similar legislation in the future. Certainly, "the full scope and meaning of the section should be considered . . . in the light of the evil intended to be remedied by its adoption." Lewis v. Hollahan, 103 Pa. 425, 430 (1883). Cf. Statutory Construction Act of 1962, 1 Pa. S. § 1921(C)(3) and (5).

The Act of April 4, 1868, placed absolute dollar maximums on the damages recoverable by the negligently injured plaintiff. The No-fault Act, however, allows recovery for proven economic loss without limitation. The effect of the No-fault Act is to create two classes of motor vehicle accident victims, each with different items of compensable damage. But in each class the types of losses, which are compensable, are compensable without limit.*fn10 The allowance of recovery by one class for an injury and the proscription of recovery by another for what appears to be the same injury presents substantial equal protection questions, which we will consider below.*fn11

[ 464 Pa. Page 397]

But where two classes remain free to recover without limit the types of injuries assigned to each, no violation of Article III, Section 18, occurs. See Seymour v. Rossman, 449 Pa. 515, 297 A.2d 804 (1972).

We are not unmindful of language in Pennsylvania case law which suggests an opposite conclusion. For example, in Thirteenth and Fifteenth Street Passenger Railway v. Boudrou, 92 Pa. 475, 482 (1880), this Court, in considering the validity of the Act of April 4, 1868, said: "Nothing less than the full amount of pecuniary damages which a man suffers from an injury . . . fills the measure secured to him in the Declaration of Rights. . . . A limitation of recovery to a sum less than actual damage, is palpably in conflict with the right to remedy by due course of law."*fn12 However, if the right to a remedy is eliminated by the legislature, this principle is not violated. Nothing in Article III, Section 18, prevents the abolition or modification of a cause of action. See Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899 (1955); Jackman v. Rosenbaum Co., 263 Pa. 158, 106 A. 238 (1919), aff'd 260 U.S. 22, 43 S.Ct. 9, 67 L.Ed. 107 (1922); and McMullen v. Nannah, 49 Pa.D. & C. 516 (Beaver Co. 1943). The plaintiff concedes this legislative power, Plaintiff's Brief, pp. 22-24, but concludes that the abolition of a cause of action effectuated by Section 301(a) limits the amount of recovery for a particular class of motor vehicle accident victims. What Section 301(a) abolishes is the right of those injured parties to recover in tort.*fn13 Admittedly, the determination that

[ 464 Pa. Page 398]

    a particular person retains his or her common-law remedy rests solely on the litigant's ability to place himself or herself within one or more of the exceptions listed in Section 301(a). This, however, speaks again to the reasonableness of the classifications created by Section 301(a), not to the validity of the No-fault Act in relation to Article III, Section 18.


Plaintiff suggests*fn14 that the elimination of a tort remedy for some accident victims denies them free access to the courts to redress "an injury done [them]," as guaranteed by Article I, Section 11, of the Pennsylvania Constitution.*fn15 Two possible rationales can be advanced to support this position. First, an individual has a vested right in the maintenance of the status quo of the common law torts. Second, if no vested right in the status quo exists, an individual is guaranteed the right to judicial redress where a particular loss retains the character of a legal injury.

[ 464 Pa. Page 399]

It is clear that Article I, Section 11, can be invoked only with respect to a legal injury. Jackman v. Rosenbaum Co., 263 Pa. 158, 106 A. 238 (1919), aff'd 260 U.S. 22, 43 S.Ct. 9 (1922). As we have noted, non-economic losses have uniformly been viewed as compensable portions of tort recovery.*fn16 Any conclusion that an individual has a vested right in the continued existence of an immutable body of negligence law would necessitate the invalidation of the No-fault Act as a violation of Article I, Section 11, and the due process clause of the Fourteenth Amendment to the Federal Constitution.

However, the practical result of such a conclusion would be the stagnation of the law in the face of changing societal conditions. In 1876, in Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77, the United States Supreme Court recognized that due process was not violated when legislative action modified the common law. The Court ruled:

"A person has no property, no vested interest, in any rule of common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to changes of time and circumstances." (Emphasis added)

94 U.S. at 134.

In interpreting Article I, Section 11, this Court reached a similar conclusion when it stated:

"The fundamental principles of the common law, while liable to expansion, are in essence unchangeable,

[ 464 Pa. Page 400]

    but their applicability to given conditions necessarily varies according to changes wrought by usage or statutory enactment; and, pursuing this thought, what today is a trespass, may, by development of law, not be so tomorrow. Therefore, it will not do to say (as plaintiff does), since, once upon a time, at common law [an event] would have been a tort, giving rise to a claim for damages . . . [when], under present conditions, the law views [the event] as constituting no wrongful . . . act."

Jackman, 263 Pa. at 175, 106 A. at 244.*fn17 Nothing in Article I, Section 11, therefore, prevents the legislature from ...

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