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BERTHA E. REIMER v. JAMES K. DELISIO (02/19/82)

filed: February 19, 1982.

BERTHA E. REIMER, APPELLANT,
v.
JAMES K. DELISIO, JR.



No. 30 March Term, 1979, Appeal from the Judgment of the Court of Common Pleas, York County, Civil Division, No. 77-S-3402.

COUNSEL

David S. Shrager, Philadelphia, for appellant.

Donald H. Yost, York, for appellee.

Cercone, President Judge, and Watkins and Montgomery, JJ. Watkins, J., concurs in the result.

Author: Cercone

[ 296 Pa. Super. Page 208]

The instant appeal arises from a jury verdict in the amount of $23,230 in favor of plaintiff appellant, Bertha Reimer, for personal injuries she sustained in an automobile accident. For reasons which she attributes to the trial judge's rulings, Mrs. Reimer contends the jury's verdict was inadequate. In particular Mrs. Reimer contends the trial court erred in withholding the question of punitive damages from the jury's consideration, and erred in refusing to permit the jury to view a motion picture of her daily activities as hampered by her injuries. She further contends the court abused its discretion in excluding certain evidence of the need for future surgery and her future economic loss, as well as reacting improperly and prejudicially to her attempts to fortify her case when the court ruled on defendants' objections. The relevant facts are as follows:

On July 22, 1977 the automobile defendant-appellee, James Delisio was operating collided with Mrs. Reimer's automobile, when the Delisio vehicle crossed the center line while travelling in excess of fifty miles per hour on a public street adjacent to a playground. At the time of the accident Mrs. Reimer, a widow, was in reasonably good health and was employed at a clothing factory fulltime. The damage from the force of the collision pinned Mrs. Reimer in her automobile, smashed both her knees, and caused her sundry other injuries. As a consequence her left knee cap was surgically removed as was part of her right knee cap. In addition she suffered an immobilized left shoulder, bursitis of the hip, and permanent scarring.

Mrs. Reimer's rehabilitation therapy was lengthy, undoubtedly painful, and will never be wholly restorative. While she previously had worked forty-hour weeks with frequent overtime, she now is able to work no more than five hours a day, and her condition is only likely to worsen. Her leisure time and homemaking activities are similarly restricted.

[ 296 Pa. Super. Page 209]

We are persuaded that the initial clause of Section 1009.301 of our No-Fault Act explicitly abolished all causes of action falling within the ambit of the Act; and, consequently abolished punitive damages for gross negligence, reckless disregard, and the like. Subsection (a) of that Section provides:

Partial Abolition. -- Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance and use of a motor vehicle, except that . . . .

There follow exceptions which do not specifically refer to liability for gross negligence, although intentional conduct is so excepted.*fn1

We are not persuaded, either, that punitive damages for recklessness or gross negligence are implicitly preserved in subsections (a)(4) or (a)(5) of Section 301 of the Act. Subsection (a)(4) provides:

A person remains liable for loss which is not compensated because of any limitation in accordance with section 202(a), (b), (c) or (d) of this act . . . ." [Emphasis added.]

"Loss" is defined in the Act as "accrued economic detriment . . . consisting of, and limited to, allowable expense, work loss, replacement services loss, and survivor's loss." Section 103. Those types of expenses and losses are also defined in Section 103 of the Act and cannot rationally be interpreted as including punitive damages. Since "loss" is defined in the Act in a way which excludes punitive damages, it cannot be said that such damages are includable as "loss which is not compensated because of any limitation in accordance with Section 202(a), (b), (c) or (d) of his act . . . ." Consequently, under Section 301(a)(4) a person does not remain liable for punitive damages for reckless or gross negligence.

[ 296 Pa. Super. Page 211]

The next subsection, 301(a)(5), is equally clear in not preserving punitive liability for recklessness or gross negligence. Section 301(a)(5) provides that a "person remains liable for damage for non-economic detriment" on the conditions there following. However, Section 103 of the Act specifically defines non-economic detriment to exclude "punitive or exemplary damages." Consequently, according to this language, a person does not remain liable for punitive damages under the provisions of subsection (a)(5) of Section 301. See D. Shrager, The Pennsylvania No-Fault Motor Vehicle Act § 2.7 (1979).

Appellant valiantly raises the argument that Section 301(b) has preserved the right of a victim to recover punitive damages for reckless or grossly negligent conduct. Section 301(b) provides:

Non-reimbursable tort fine. -- Nothing in this section shall be construed to immunize an individual from liability to pay a fine on the basis of fault in any proceeding based upon any act or omission arising out of the maintenance or use of a motor vehicle: Provided, That such fine may not be paid or reimbursed by an insurer or other restoration obligor.

There is little doubt that, on its face, this provision admits of no ready interpretation, especially since the term "tort fine" appears to have been coined. In that regard we emphathize with the trial judge when he stated he did not know what a tort fine was. On the other hand there is nothing promiscuous about appellant's contention that the term "tort fine" includes punitive or exemplary damages. Punitive damages are, in a manner of speaking, a penalty or fine imposed upon a person for engaging in particularly egregious conduct, payable to the victim as a kind of windfall, at least in the sense that the punitive damages are paid in addition to damages necessary to make the victim whole. See C. McCormick, Damages § 77 ...


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