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MARK KOWAL AND LAURA KOWAL v. COMMONWEALTH PENNSYLVANIA (09/19/86)

decided: September 19, 1986.

MARK KOWAL AND LAURA KOWAL, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, AND CHARLES PAUL KUGAL, APPELLEES



Appeal from the Order of the Court of Common Pleas of Erie County in the case of Mark Kowal and Laura Kowal, his wife v. Commonwealth of Pennsylvania, Department of Transportation v. Charles Paul Kugal, No. 8-A-1981 and in the case of Mark Kowal and Laura Kowal, his wife v. Charles Paul Kugal v. Commonwealth of Pennsylvania, Department of Transportation, No. 9-A-1981.

COUNSEL

Bruce W. Bernard, Ely & Bernard, for appellants.

Brian H. Baxter, Deputy Attorney General, with him, Mark E. Garber, Chief, Tort Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellees.

President Judge Crumlish, Jr., and Judges Rogers, Craig, MacPhail, Barry, Colins and Palladino. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 100 Pa. Commw. Page 594]

Mark Kowal and his wife, Laura Kowal, appeal an Erie County Common Pleas Court order granting a motion to mold a verdict in their favor against the Department of Transportation (DOT) to $250,000 and assessing $73,834.52 in delay damages against DOT. We reverse and remand.

Mark Kowal was a passenger in an automobile which left the roadway of a Commonwealth highway, straddled the guardrail, and then flipped over due to an eight-foot gap in the guardrail. He was thrown from the vehicle onto the highway and suffered injuries which left him a permanent quadriplegic. The Kowals filed two suits, one against the driver, Charles Paul Kugal, and one against DOT.*fn1 Mark Kowal sought damages for loss of earnings, pain and suffering, and medical expenses. Laura Kowal sought damages for loss of consortium. These suits were consolidated for trial. A jury verdict

[ 100 Pa. Commw. Page 595]

    awarded Mark Kowal damages of $1,013,000 and Laura Kowal damages of $337,000.*fn2 DOT filed a post-trial motion requesting that the verdict be molded to $250,000, the limitation on the amount of damages recoverable by a single plaintiff against the Commonwealth and its agencies, including DOT. Section 8528(b) of the Judicial Code (Code).*fn3 The trial judge granted the motion and calculated delay damages upon the $250,000 molded verdict.

The Kowals initially contend that the $250,000 limitation on a plaintiff's recovery of damages from the Commonwealth violates the Pennsylvania and United States Constitutions. We disagree.

The constitutional arguments raised by the Kowals were also raised in Lyles v. City of Philadelphia, 88 Pa. Commonwealth Ct. 509, 490 A.2d 936 (1985). We held there that the $250,000 damage limitation was not constitutionally infirm. Our Lyles decision controls, and we therefore reject the Kowals' constitutional challenges to the damage limitation provision.*fn4

The Kowals next contend that the trial judge erred in molding the total award to $250,000 because they are separate plaintiffs for purposes of recovery against the Commonwealth. We agree.

The Kowals argue that they are each plaintiffs in their own right because Laura Kowal's damages for loss of consortium are separate and distinct from her husband's ...


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