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decided: April 8, 1985.


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Doris Lyles v. City of Philadelphia, Commonwealth of Pennsylvania, Department of Transportation, and Essie L. Francis, Additional Defendant, No. 3017 February Term, 1981.


Stephen M. Feldman, for appellant.

Michael B. Tolcott, Assistant City Solicitor, with him, Barbara W. Mather, City Solicitor, Barbara R. Axelrod, Deputy City Solicitor, Ralph J. Luongo, Assistant City Solicitor, for appellee, City of Philadelphia and Amici Curiae: School District of Philadelphia and Cities of Pittsburgh, Reading, Allentown and Erie.

Gary B. Gilman, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for appellee, Department of Transportation.

President Judge Crumlish, Jr., and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by President Judge Crumlish, Jr. Judge Barry concurs in the result only. Judge Williams, Jr., did not participate in the decision in this case.

Author: Crumlish

[ 88 Pa. Commw. Page 511]

Before us is the appeal of Doris Lyles. A Philadelphia County Common Pleas Court order granted the Commonwealth's motion to limit a personal injury verdict to $250,000 and denied her motion for delay damages. We affirm the order with respect to the Commonwealth's motion and we reverse as to the latter motion and remand this case to the trial court for disposition consistent with this opinion.

Lyles suffered permanent quadriplegic injuries in a March 11, 1979 automobile accident on the Schuylkill Expressway which she alleged was caused by the Commonwealth's negligent highway design.*fn1 A jury found against the Commonwealth and awarded her $750,000.*fn2 The Commonwealth filed a motion seeking to mold this award to the $250,000 liability limitation imposed by Section 2 of the Sovereign Immunity Act (Act 152),*fn3 whereupon Lyles moved for delay damages of $96,875 as provided in Pa. R.C.P. No. 238. The trial court granted the Commonwealth's motion and denied Lyles' motion for delay damages.

[ 88 Pa. Commw. Page 512]

    payment by employers, or employers and employes jointly, of reasonable [workmen's compensation benefits]; but in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property . . . ." Lyles urges that this language prohibits the legislature from limiting the amount of recoveries against the Commonwealth. In response, the Commonwealth asserts that the drafters of this section, and of later amendments thereto,*fn4 never intended it to apply to suits against the Sovereign.

A court is to interpret constitutional language in its popular, ordinary, and natural meaning, taking into consideration the circumstances surrounding its formation and the likely construction placed upon it by the people who voted for it. Behrend v. Bell Telephone Co., 257 Pa. Superior Ct. 35, 390 A.2d 233 (1978). In guiding us, our Supreme Court has specifically instructed that "'the full scope and meaning of [Article 3, Section 18] should be considered . . . in light of the evil intended to be remedied by its adoption.'" Singer v. Sheppard, 464 Pa. 387, 396, 346 A.2d 897, 901 (1975) (quoting Lewis v. Hollahan, 103 Pa. 425, 430 (1883)).

Viewing Article 3, Section 18 through the eyes and minds of the Constitutional delegates, we believe that the evils which they intended to remedy were statutes setting unreasonably low limits on recoveries against certain classes of defendants, such as a law enacted in 1868 limiting the liability of railroads and other common carriers to $3,000 for personal injury and

[ 88 Pa. Commw. Page 514]

$5,000 for fatality.*fn5 We so conclude based on the debates at the 1872-73 Constitutional Convention concerning this provision, which exclusively centered around the pros and cons of mandating unlimited recoveries against private -- particularly corporate -- defendants.*fn6 In light of this conclusion, and in light of judicial determinations considering Article 3, Section 18's application to subsequent legal developments,*fn7 we conclude that the draftsmen's overall purpose was to prevent the General Assembly from unfairly favoring a class of private defendants over a class of private plaintiffs by statutorily limiting the right to an adequate compensatory recovery. Therefore, it would be unreasonable to impute to the original draftsmen of Article 3, Section 18, and certainly to those who merely inserted the workmen's compensation provision in 1915 and renumbered this section in 1967, an intent that it apply to suits where a government entity is the defendant. Such a result could not further the goal of the framers because there is no unjust furtherance of selfish private interests from a restriction on recoveries against the public treasury. We therefore hold that Article 3, Section 18 does not apply to suits against the Commonwealth.

Turning to the challenges under Article 3, Section 32 of our state constitution and the federal Equal Protection

[ 88 Pa. Commw. Page 515]

Clause,*fn8 Lyles contends that Act 152's damage restriction creates several classifications which illegally discriminate against victims of the Commonwealth's torts.*fn9

We must first decide the level of scrutiny. Courts have devised three general levels of scrutiny for Equal Protection Clause challenges. The highest level, known as strict scrutiny, applies to legislative classifications infringing upon fundamental rights, such as free speech, and to those which are inherently suspect because they inordinately burden a group of citizens traditionally victimized by discrimination, for instance racial minorities. Department of Transportation, Bureau of Traffic Safety v. Slater, 75 Pa. Commonwealth Ct. 310, 462 A.2d 870 (1983). Under this scrutiny, a classification will not pass constitutional muster unless it is necessary to advance a compelling state interest. Benner v. Oswald, 592 F.2d 174 (3d Cir.

[ 88 Pa. Commw. Page 5161979]

), cert. denied, 444 U.S. 832 (1979). The next level, termed middle-level or intermediate scrutiny, applies to classifications affecting less fundamental rights, such as commercial speech, and to classifications which are not quite so suspect, such as gender. Long v. 130 Market Street Gift & Novelty of Johnstown, 294 Pa. Superior Ct. 383, 440 A.2d 517 (1982). When this test applies, a classification must serve an important government interest and be substantially related to the achievement of that interest. Craig v. Boren, 429 U.S. 190 (1976). The third level, employing the least scrutiny, is the rational relationship test. It applies to all other legislative classifications, for example those implicating economic rights. This minimal scrutiny upholds classifications unless they are patently arbitrary and lack any rational relationship to a legitimate government interest. Robson v. Penn Hills School District, 63 Pa. Commonwealth Ct. 250, 437 A.2d 1273 (1981).

Since the restriction imposed by Act 152 neither creates a suspect classification nor burdens a fundamental right, but rather impacts on the economic right to full compensation, the appropriate level of scrutiny under the Equal Protection Clause is the rational relationship test. See Picariello v. Commonwealth, 54 Pa. Commonwealth Ct. 252, 421 A.2d 477 (1980). This test is likewise the proper level of scrutiny under Article 3, Section 32 because this provision bears a meaning and purpose similar to the Equal Protection Clause. Baltimore & Ohio Railroad Co. v. Department of Labor and Industry, 461 Pa. 68, 334 A.2d 636 (1975), appeal dismissed 423 U.S. 806 (1975).

Act 152's limit on the Commonwealth's damage payments rationally relates to the legitimate government interest in preserving sufficient funds for essential public services without imposing an undue

[ 88 Pa. Commw. Page 517]

    burden upon taxpayers. As we noted in an earlier decision upholding another provision of Act 152 against an Equal Protection Clause challenge:

A balance must be struck between unlimited potential liability and the need for fiscal security. Full monetary responsibility for the tortious conduct of [the Commonwealth's] agencies and employees involves the risk of an intolerable tax burden. . . . The legislature legitimately may take steps to preserve sufficient public funds to guarantee that the government will be able to continue to provide those services which it believes benefits the citizenry.

Picariello, 54 Pa. Commonwealth Ct. at 257, 421 A.2d at 480. Lyles' Article 3, Section 32 and Equal Protection challenges thus fail.

Delay Damages

Lyles argues that the trial court erred in ruling that the Commonwealth is exempt from the levy of delay damages mandated by Pa. R.C.P. No. 238.*fn10 We agree.

[ 88 Pa. Commw. Page 518]

In Commonwealth v. Twentier, 76 Pa. Commonwealth Ct. 537, 464 A.2d 642 (1983), we held that the Commonwealth is subject to delay damages. See also Page 518} Ehehalt v. Nyari O'Dette, Inc., 85 Pa. Commonwealth Ct. 94, 481 A.2d 365 (1984). Twentier relied on our Supreme Court's ruling that delay damages are procedural in nature, and thus within its exclusive constitutionally-mandated authority as administrator of the judicial system. 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). Since our Supreme Court enjoys the sole discretion to allow the assessment of procedural damages, the General Assembly cannot interfere with it by the use of Act 152's restrictions on the award of substantive damages against the Commonwealth. See In Re: 42 Pa. C.S. ยง 1703, 482 Pa. 522, 394 A.2d 444 (1978); see also Garrett v. Bamford, 582 F.2d 810 (3d Cir. 1978).

Lyles is entitled to an award of delay damages in addition to her $250,000 recovery, but these damages are governed by subsection (e) of Rule 238, which provides that delay damages do not accrue beyond the date of a written offer of prompt cash payment where the offer is kept open and the verdict does not exceed 125 percent of the amount offered. Her delay damage calculation is based on the delay period continuing up to and including the June 4, 1982 verdict, but the Commonwealth made a $250,000 written offer of settlement on April 15, 1982. Because the molded verdict did not exceed 125 percent of the Commonwealth's offer, the award of delay damages is limited to a

[ 88 Pa. Commw. Page 519]

    period ending April 15, 1982, if it is determined on remand that there has been compliance with all the other requirements of Rule 238(e).


We affirm the trial court's grant of the Commonwealth's motion to mold the verdict to Act 152's $250,000 damage limitation. We reverse the trial court's denial of Lyles' motion for delay damages and remand for a computation and award consistent with this opinion.


The order of the Philadelphia County Common Pleas Court, No. 3017 February Term 1981, dated July 12, 1983, is affirmed as to the molding of the verdict to the $250,000 damage limitation imposed by Act 152; the order is reversed as to the denial of delay damages. The case is remanded for a computation and award of delay damages consistent with the foregoing opinion.

Judge Barry concurs in the result only.

Judge Williams, Jr., did not participate in the decision in this case.


Affirmed in part, reversed in part and remanded.

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