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decided: August 24, 1983.


Appeals from the Order of the Court of Common Pleas of Beaver County in the case of Raymond W. Twentier and Elfrieda Twentier, his wife v. Commonwealth of Pennsylvania, No. 525 of 1979; and from the Order of the Court of Common Pleas of Philadelphia County in the case of Neil Reeb v. Commonwealth of Pennsylvania, Department of Transportation, et al., No. 2530 November Term, 1979.


Herbert L. Olivieri, Chief of Torts Litigation Section, with him LeRoy S. Zimmerman, for appellants.

Allan H. Cohen, Gatz, Cohen, Segal & Koerner, for appellees, Raymond W. Twentier and Elfrieda Twentier, his wife.

Donald E. Matusow, with him Ronald L. Wolf, Litvin, Blumberg, Matusow & Young, for appellee, Neil Reeb.

President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr. and Doyle. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 76 Pa. Commw. Page 538]

The Commonwealth appeals the denial of post-trial motions in two separate but herein consolidated cases. We affirm.

Raymond W. Twentier and his wife sued the Commonwealth in Beaver County Common Pleas Court for injuries he sustained in an accident involving a Commonwealth vehicle on May 10, 1977. Neil Reeb sued the Commonwealth in Philadelphia County Common Pleas Court for injuries sustained on September 10, 1978, when his motorcycle collided with a medial barrier on a highway "construction cross-over" designed by the Commonwealth. Both cases went to trial, resulting in the following verdicts: Twentier, $650,000 and his wife $10,000, to which $146,020.04 and $2,253.76, respectively, were added by the trial court as delay damages; and award of $1,440,000 and $284,483 in delay damages was made to Reeb.

The Commonwealth filed post-trial motions in each case seeking to mold the verdicts to the $250,000 limit imposed by Section 2 of the Sovereign Immunity Act (Act 152),*fn1 and to strike the delay damages. Both

[ 76 Pa. Commw. Page 539]

Common Pleas Courts denied these motions in the respective cases.*fn2

The Commonwealth argues that Act 152's limitation of damages applies, even though these causes of action accrued prior to the Act's effective date (i.e., September 28, 1978).

In Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980), our Supreme Court concluded that Act 152 could not be applied to causes of action arising prior to its effective date. The Commonwealth contends that Gibson is limited to retroactive extinguishment of an entire cause of action, but that it does not preclude retroactive application of the damage limitation provision. Gibson is not so limited.

Although Gisbon involved causes of action which Act 152 purported to bar in toto, its language evidences an unmistakable intent to prohibit any portion of the Act from having retroactive effect. The Court concluded "that Act 152 may not constitutionally govern such actions. . . ." Id. at 158, 415 A.2d at 81. The Court, clearly intending to prohibit all retroactive applications of Act 152, noted that:

[ 76 Pa. Commw. Page 540]

In the very nature of things, a law that is enacted after the case has arisen can be no part of the case. Such a law can have only a forced and unnatural relation to the case, and must produce an untrue decision. . . . (Emphasis added.)

Id. at 161, 415 A.2d at 83 (quoting from Menges v. Dentler, 33 Pa. 495, 498 (1859)). See also Kay v. Pennsylvania Railroad Co., 65 Pa. 269 (1870) (a court will not apply retroactively a statutory limit upon the recovery of damages).

The Commonwealth reasons that Gibson is not a bar to the retroactive application of the Act's damage limitation provisions since the Court there declined to reach the issue of the provision's constitutionality. This argument is unpersuasive. The language upon which the Commonwealth relies appears in n. 6 of the Court's opinion: "In light of our disposition, we express no view on appellants' claims that the damage provision . . . and the Act in its entirety are unconstitutional." Id. at 166, 415 A.2d at 85. The Court, by that language, simply refused to decide whether the damage limitation provision and the entire Act were unconstitutional in all applications, issues that were not pertinent to a holding of non-retroactivity.

Thus, we conclude that Twentiers' and Reeb's causes of actions are not subject to Act 152's damage limitations.

The Commonwealth finally contends that the assessment-of-delay damages pursuant to Pa. R.C.P. No. 238*fn3 is unconstitutional and, alternatively, that

[ 76 Pa. Commw. Page 541]

    such damages cannot be assessed against it. We reject these contentions.

Our Supreme Court recently upheld the constitutionality of this rule in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed sub nom. Bucheit v. Laudenberger, 456 U.S. 940 (1982).

Moreover, there is no basis for setting the Commonwealth apart from other defendants subject to delay damages. Act 152 and the Political Subdivisions Tort Claims Act*fn4 were simultaneously re-enacted after the promulgation of Rule 238. The former is silent as to delay damages, whereas the latter purports to prohibit them from being assessed against local government entities.*fn5 It is clear from this that the legislature did not intend the Commonwealth to be immune from the assessment of delay damages.


Order in 976 C.D. 1982

The Beaver County Common Pleas Court order, No. 525 of 1979, dated May 17, 1982, is hereby affirmed.

Order in 2481 C.D. 1982

The Philadelphia County Common Pleas Court order, No. 2530 November Term 1979, dated September 16, 1982, is hereby affirmed.



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