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BERTHA E. REIMER v. JAMES K. DELISIO (07/27/83)

decided: July 27, 1983.

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



Appeal Nos. 15 M.D. and 16 M.D. Appeal Dockets, 1982, from the Order entered February 19, 1982 of the Superior Court of the Commonwealth of Pennsylvania, at 30 March Term, 1979, affirming the Order entered January 30, 1979, of the Court of Common Pleas of York County, Pennsylvania, Civil Action, Law, at No. 77-S-3402; Albert G. Blakey, III, Judge.

COUNSEL

William B. Anstine, Jr., York, David S. Shrager, Philadelphia, for appellant Reimer.

Donald H. Yost, York, for cross-appellant Delisio.

Roberts, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Larsen and Hutchinson, JJ., filed concurring and dissenting opinions. Nix, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 501 Pa. Page 663]

ORDER

Judgment 296 Pa. Super. 205, 442 A.2d 731, affirmed.

LARSEN, Justice, concurring and dissenting.

I join the majority in affirming the order of the Superior Court at No. 16 M.D. Appeal Docket, 1982, granting a new trial due to the lower court's erroneous exclusions of medical testimony regarding the plaintiff's need for future surgery and of a motion picture depicting the plaintiff in physical therapy.

However, I dissent from the majority's affirmance at No. 15 M.D. Appeal Docket, 1982, of the Superior Court's interpretation of the Pennsylvania No-Fault Act, 40 P.S. § 1009.101 et seq., as abolishing the right of a plaintiff to recover punitive damages in an action arising from a motor vehicle accident.

Initially, we are faced with the unfortunate consideration that, as with practically every case involving the interpretation of the No-Fault Act, the intention of its drafters is far from clear. Because of this pervasive ambiguity, and because, in my opinion, any enactment (or interpretation) which abolishes a common-law recognized remedy or cause of action without providing a substitute, statutory remedy or cause of action runs afoul of Article I, § 11 of our Constitution, see dissenting opinion of this author in Carroll v. York, 496 Pa. 363, 437 A.2d 394, 399 (1981) (joined by Flaherty and Kauffman, JJ.), I would hold that absent specific and explicit provisions to the contrary, any cause of action or remedy pre-dating the No-Fault Act, including punitive damages, remains in existence today. Thus, I would resolve all ambiguity in favor of no abolition and continued recognition of common-law remedies and causes of action.

[ 501 Pa. Page 664]

I believe that such ambiguity exists regarding the effect of No-Fault upon recovery for punitive damages. Section 301(a) of the Act, 40 ...


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