Argued: February 11, 2013
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
RENÉE COHN JUBELIRER, Judge
Section 8553 of what is commonly known as the Political Subdivision Tort Claims Act (Tort Claims Act) limits recovery of damages against political subdivisions of the Commonwealth of Pennsylvania (Commonwealth) to $500, 000 in the aggregate for tort injuries arising from the same transaction. The question presented is whether this limitation as applied to Ashley Zauflik ("Zauflik"), who as a 17-year-old student lost her leg when a school district (District) bus ran over her, is constitutionally permissible. Specifically, Zauflik appeals from three post-trial Orders of the Court of Common Pleas of Bucks County (trial court) that: (1) molded the $14, 036, 263.39 jury verdict in her favor to reflect the application of the Tort Claims Act; (2) added delay damages in the amount of $2, 661.63 to the molded verdict rather than to the original jury verdict; and (3) sanctioned District $5, 000 pursuant to Rule 4019 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 4019, for not timely disclosing the existence of an excess insurance policy in the amount of 10 million dollars. Zauflik argues that: (1) the limitations on damages set forth in Section 8553(b) of the Tort Claims Act (statutory cap), 42 Pa. C.S. § 8553(b), violates several provisions of the Pennsylvania and United States Constitutions; (2) the delay damages should have been added to the jury verdict and not to the molded verdict; and (3) the trial court erred by imposing only a $5, 000 sanction against District for its discovery violation when it should have struck District's reliance upon the Tort Claims Act.
This appeal arises out of a Complaint filed by Zauflik against District, a local agency under the Tort Claims Act, and other defendants,  for catastrophic injuries Zauflik suffered on January 12, 2007. The injuries occurred when a District school bus driver applied the accelerator instead of the brake on District bus #42 as he shifted the bus into gear, causing the bus to run off the road onto an adjacent sidewalk and run over Zauflik. (Complaint ¶¶ 31-41, R.R. at 27a-29a; Order Approving Stipulation of Counsel (Stipulation Order), November 29, 2011, at 1-2, R.R. at 67a-68a.) The bus was owned and operated by District. Zauflik's injuries included, among others, pelvic and leg crush injuries resulting in an above-the-knee amputation of her left leg.
District admitted liability for Zauflik's injuries pursuant to Section 8542(b)(1) of the Tort Claims Act. After a jury trial on damages only, on December 5, 2011, the jury returned a verdict in the amount $14, 036, 263.39 representing $2, 936, 263.39 for past and future medical expenses and $11.1 million for non-economic damages. (Jury Verdict at 1, R.R. at 70a.)
On December 8, 2011, District's counsel learned of the existence of a $10, 000, 000 excess insurance policy while attending an executive session of District's school board and, on December 9, 2011, informed Zauflik's counsel about the policy. (Letter from District's counsel to Zauflik's counsel, via e-mail, December 9, 2011, R.R. at 391a.) During discovery District had informed Zauflik's counsel that it had $1, 000, 000 in primary insurance coverage, but did not reveal the existence of the $10, 000, 000 excess policy, or that it had a total of $11, 000, 000 in insurance coverage. District asserts that this was an inadvertent discovery violation (District's Br. at 57), but Zauflik contends that District deliberately concealed the existence of the excess policy until after the jury verdict. (Zauflik's Br. at 9.)
District and Zauflik each filed motions for post-trial relief. District requested that the trial court mold the jury verdict to $500, 000—the amount of the statutory cap. (District's Motion for Post-Trial Relief, R.R. at 72a-113a.) Zauflik opposed District's motion to mold the verdict on the grounds that the Tort Claims Act violates the Pennsylvania and United States Constitutions both facially and as applied, and filed a motion that the verdict not be molded, and judgment be entered based on the original verdict. (Zauflik's Answer and Memorandum in Opposition to District's Motion for Post-Trial Relief, R.R. at 463a-646a.) Zauflik filed a Motion for Delay Damages and a Motion for Sanctions pursuant to Rules 238(a)(2) and 4019 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. Nos. 238(a)(2), 4019. (Motion for Delay Damages, R.R. at 114a-26a; Motion for Sanctions, R.R. at 127a-415a.)
In the Motion for Sanctions, Zauflik requested that the trial court strike District's reliance on the Tort Claims Act as a defense and/or limitation on damages, and sought leave to take additional discovery about the circumstances of District's failure to disclose the excess policy, additional time to review District's responses to this discovery, an evidentiary hearing, and an order that District produce amended, verified responses to Zauflik's first set of interrogatories. (Motion for Sanctions at ¶¶ 24-29, R.R. at 133a.) Following a telephone hearing on January 27, 2012, (Hr'g Tr., January 27, 2012, at 1-51, R.R. at 1099a-1149a), the trial court entered an order permitting Zauflik to conduct limited post-trial discovery in support of the Motion for Sanctions. (Trial Ct. Order, February 6, 2012.) Zauflik served post-trial discovery requests and took the depositions of District's business administrator, Isabel Miller, both in her personal capacity and as District's designee, and several additional District representatives, including the following third-party administrators for the School Claims Service: David Witmer, Kelby Leonard, and L. Roeg Williamson.
On May 25, 2012, after briefing and oral argument on the post-trial motions, the trial court filed a Memorandum Opinion and Orders molding the jury verdict to $500, 000 pursuant to the Tort Claims Act and adding delay damages to the molded verdict in the amount of $2, 661.63. The Trial Court then granted Zauflik's Motion for Sanctions against District for not disclosing the existence of the excess policy and ordered District to pay Zauflik's counsel the amount of $5, 000. (Trial Ct. Orders, May 25, 2012, R.R. at 876a-86a.) In its Memorandum Opinion, the trial court acknowledged "that the circumstances of this case create an unfair and unjust result, " and stated that despite the existence of a total of $11, 000, 000 in insurance policy coverage, the statutory limitation on damages for a local agency pursuant to Section 8553(b) of the Tort Claims Act required the trial court to mold the jury verdict of $14, 036, 263.39 to $500, 000, "effectively reducing the jury's determination of fair and adequate compensation for the damages Zauflik suffered as a result of [District's] negligence by ninety-six (96) percent." (Trial Ct. Op. at 3.) The trial court stated further that it was "constrained by precedent to find [Section] 8553(b) to be constitutional, " although it expressed concern in so doing:
This Court is of the opinion that a reevaluation of the constitutionality of the statutory cap on damages on equal protection grounds is necessary. It is this Court's belief that an individual's right to a full compensatory recovery in a tort suit is decidedly not outweighed by the governmental interest of "preservation of the public treasury as against the possibility of unusually large recoveries in tort cases."
(Trial Ct. Op. at 4-5 (emphasis in original).) This appeal followed.
On appeal, Zauflik argues that the Tort Claims Act's $500, 000 statutory cap on damages should be reevaluated and declared unconstitutional because it violates the following provisions of the Pennsylvania Constitution: (1) Article I, Section 11 ("open courts" provision); (2) Article III, Section 18 ("anti-cap" provision); (3) Article V, Section 1 ("separation of powers" provision involving the judicial power to set remittitur of jury awards); and (4) Article I, Section 6 ("right-to-jury" provision). Zauflik argues that the statutory cap also violates the Equal Protection Clauses of both the Pennsylvania and United States Constitutions, equal protection principles as applied to this case, and the Due Process Clause of the United States Constitution. Zauflik further contends that the delay damages added to the molded verdict should have been added to the jury verdict, and that the trial court erred by imposing only a $5, 000 sanction against District for its discovery violation. We now review each of Zauflik's arguments.
I. Article I, Section 11 of the Pennsylvania Constitution- "Open Courts"
Multiple constitutional challenges have been raised unsuccessfully against the Tort Claims Act since its enactment soon after the Pennsylvania Supreme Court's abrogation of the common law doctrines of governmental and sovereign immunity. See Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 587, 305 A.2d 877, 878 (1973) (abrogating the common law doctrine of governmental immunity), superseded by statute, Tort Claims Act, as recognized in Michel v. City of Bethlehem, 478 A.2d 164, 165 (Pa. Cmwlth. 1984). See also Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 400, 388 A.2d 709, 716 (1978) (abrogating the common law doctrine of sovereign immunity), superseded by statute, Act commonly known as Sovereign Immunity Act, 42 Pa. C.S. § 8521-8528, as recognized in Kapil v. Association of Pennsylvania State College and University Faculties, 504 Pa. 92, 98, 470 A.2d 482, 485 (1983). The General Assembly, pursuant to the authority granted to it by Article I, Section 11 of the Pennsylvania Constitution, made a policy decision after the Supreme Court's abrogation to reestablish the immunity of political subdivisions from suit, while simultaneously excepting claims for injuries resulting from eight separately described causes, which resulted in the enactment of the Tort Claims Act. See Section 8542(b) of the Tort Claims Act, 42 Pa. C.S. §8542(b). This legislative policy decision was consistent with the Supreme Court's conclusion that the Framers of Article I, Section 11 "intended to allow the Legislature, if it desired, to choose cases in which the Commonwealth should be immune . . . ." Mayle, 479 Pa. at 400, 388 A.2d at 717. Article I, Section 11 of the Pennsylvania Constitution, known as the "Open Courts" provision, provides:
All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.
Pa. Const. art. 1, § 11. In an early constitutional challenge to the Tort Claims Act, our Supreme Court pronounced the second sentence of Article I, Section 11 to be "an integral, unequivocal and controlling portion" of this Constitutional provision, and so upheld the constitutionality of the Tort Claims Act against wrongful death and survival claims by Carroll, a plaintiff who sought recovery for the death of her son who committed suicide while in the custody of a county detention home. Carroll v. County of York, 496 Pa. 363, 365-66, 437 A.2d 394, 395-96 (1981). Carroll, whose claims were barred entirely by the immunity of the Tort Claims Act because her claims were not within any of the exceptions,  argued that the Tort Claims Act violated Article I, Section 11 by "'clos[ing]' the courts to potential plaintiffs by denying them a 'remedy by due course of law."' Id. at 366, 437 A.2d at 396 (quoting Article I, Section 11 of the Pennsylvania Constitution). In Carroll, the Pennsylvania Supreme Court decided that "the [General Assembly]'s authority 'to choose cases in which the Commonwealth should be immune' encompasses political subdivisions." Id. at 367, 437 A.2d at 396 (quoting Mayle, 479 Pa. at 400, 388 A.2d at 717). The Supreme Court found that the challenger's argument, "based solely on the first sentence of Article I, Section 11, completely ignores the concluding sentence of that section." Id. at 366, 437 A.2d at 396. The Supreme Court concluded that "[i]t is not our function to displace a rationally based legislative judgment, " because it "is within the province of the [General Assembly] to determine that certain bars to suit are, in its judgment, needed for the operation of local government." Id. at 369-70, 437 A.2d at 397.
Before Carroll was handed down, "a gas explosion in . . . Philadelphia killed seven persons, injured many others, and caused extensive property damage." Smith v. City of Philadelphia, 512 Pa. 129, 132, 516 A.2d 306, 308 (1986). Seventy-two claimants filed forty-four separate actions against the City of Philadelphia, Philadelphia Gas Works, and the Philadelphia Facilities Management Corporation. Id. Thereafter, "Smith and two other plaintiffs filed a declaratory judgment action seeking a declaration that the . . . Tort Claims Act is unconstitutional in its limitation of damages to an aggregate amount of $500, 000." Id. The Supreme Court again examined Article I, Section 11 and reaffirmed its reasoning in Mayle, Ayala and Carroll that the Framers of the Constitution granted to the legislative branch the power to control "not only the cases, but also the manner and the courts in which cases against the Commonwealth may be brought . . . ." Smith, 512 Pa. at 134, 516 A.2d at 309. The Supreme Court explained that, because Article I, Section 11 authorizes the General Assembly to abolish a cause of action, "surely it may also limit the recovery on the actions which are permitted, " adding that "[t]o hold otherwise would be, in our view, to grant with one hand what we take away with the other, " which would be "absurd" or at least "unreasonable." Id. The Supreme Court, therefore, concluded in Smith that Article I, Section 11 should not be read to prohibit the General Assembly from enacting a limit on the tort liability of its political subdivisions. Id. at 134-35, 516 A.2d at 309.
Zauflik contends that Smith incorrectly interpreted the second sentence of Article I, Section 11 because it guarantees an individual's right to obtain full redress and full compensation. Zauflik further argues that a political subdivision is not the Commonwealth and emphasizes that the Framers were aware of political subdivisions, but did not include them in Article I, Section 11 which specifies only the "Commonwealth." (Zauflik's Br. at 42.) Zauflik points to Justice Larsen's dissenting opinions in Carroll, 496 Pa. at 370-86, 437 A.2d at 398-406 (Larsen, J., dissenting), Smith, 512 Pa. at 141-54, 516 A.2d at 312-19 (Larsen, J., dissenting), and Mascaro v. Youth Study Center, 514 Pa. 351, 364-71, 523 A.2d 1118, 1125-28 (1987) (Larsen, J., dissenting), in which he applies a plain meaning approach to the second proviso of Article I, Section 11, giving full effect to both sentences consistent with Article I's basic purpose of preserving individual rights. Zauflik highlights the following from Justice Larsen's dissent in Carroll:
A political subdivision is most certainly not "the Commonwealth" and the parties do not seriously argue that the second proviso of Article I, § 11 supports the legislature's enactment of the Act. Such an argument is quickly answered with two same-day decisions of this Court. Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973), declined to overrule the "doctrine" of sovereign immunity in the absence of legislative action waiving the Commonwealth's immunity. Ayala v. Philadelphia Board of Public Education, supra, did not feel compelled, on the other hand, to await legislative action in order to abolish immunity's local government counterpart. The difference between these cases, as observed by Justice Pomeroy, was the second proviso, which provided a constitutional basis for sovereign immunity but not for governmental, thus freeing the courts to act in the latter case, while restricting them in the former.
Carroll, 496 Pa. at 380, 437 A.2d at 403 (Larsen, J., dissenting). Zauflik also advocates for our consideration of decisions by other states that have rejected similar liability limitations.
We are aware, as was the trial court, that our Supreme Court has rejected these arguments. As an intermediate appellate court, we must "follow and apply that [law] . . . to establish some measure of predictability and stability in our case law." Malinder v. Jenkins Elevator & Machine Co., 538 A.2d 509, 513 (Pa. Super. 1988). An opinion decided by a majority of our Supreme Court "becomes binding precedent on the courts of this Commonwealth." Commonwealth v. Tilghman, 543 Pa. 578, 588, 673 A.2d 898, 903 (1996). Therefore, in accordance with Supreme Court precedent, and that of this Court,  we must find that the Tort Claims Act does not violate Article I, Section 11.
II. Article III, Section 18 of the Pennsylvania Constitution- "Anti-Cap"
Zauflik next argues that the Tort Claims Act violates Article III, Section 18 of the Pennsylvania Constitution, which bars the General Assembly from capping compensatory damages unless the case involves workers' compensation. Zauflik contends that the approach in Smith of resorting to historical developments in order to reject what she refers to as the "unambiguous and unequivocal" language of Article III, Section 18 was fundamentally wrong. (Zauflik's Br. at 39.) Zauflik argues that the constitutional language should have been applied as written because it is unambiguous and mandatory, citing Commonwealth v. McNeil, 808 A.2d 950, 954 n.2 (Pa. Super. 2002) (stating that no rules of construction should be applied when the constitution's plain meaning is clear).
In Smith, our Supreme Court considered arguments that were similar, if not identical, to Zauflik's position here. Relying upon Singer v. Sheppard, 464 Pa. 387, 394, 346 A.2d 897, 900 (1975),  for the history of this constitutional provision, our Supreme Court stated that "'the full scope and meaning of [Article III, Section 18] should be considered . . . in light of the evil intended to be remedied by its adoption.'" Smith, 512 Pa. at 135, 516 A.2d at 309 (quoting Singer, 464 Pa. at 396, 346 A.2d at 901) (alteration in original). Noting that "Article III, Section 18[, formerly Section 21, ] was drafted in 1872 and 1873, and adopted in 1874 in response to . . . certain powerful private interests . . . influenc[ing] legislation which limited recovery in negligence cases filed against them, " the Supreme Court in Smith determined that the intended scope of Article III, Section 18 "was to prevent private parties from securing an unfair limitation of liability through influence in the General Assembly." Id. at 135-36, 516 A.2d at 309-10 (emphasis omitted). The Supreme Court explained that, when this provision was drafted, the common law doctrine of sovereign immunity was in existence and "the Framers would have had no occasion to apply the prohibition against limiting damages to government" because "[i]t was not for more than 100 years after this [constitutional] provision was drafted that this Court . . . abrogated common-law sovereign immunity" in Mayle. Id. at 136, 516 A.2d at 310. Stating that "'[a]n Act of Assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution, '" and that "any uncertainty must be resolved in favor of its validity, " id. at 136 n.5, 516 A.2d at 310 n.5 (quoting Daly v. Hemphill, 411 Pa. 263, 271, 191 A.2d 835, 840 (1963)) (emphasis in original), the Supreme Court concluded that "the Framers would have had no reason to concern themselves with governmental liability in tort." Id. at 136, 516 A.2d at 310. Thus, the Supreme Court determined that Article III, Section 18 "does not operate to restrict the General Assembly from providing for less than full recovery for injuries to persons or property where the defendant is a governmental entity." Id.
As we previously have stated, "[e]ven if it were true that . . . Smith w[as] wrongly decided, we, as an intermediate appellate court are bound by the decisions of the Pennsylvania Supreme Court and are powerless to rule that decisions of that Court are wrongly decided and should be overturned." Griffin v. Southeastern Pennsylvania Transportation Authority, 757 A.2d 448, 451 (Pa. Cmwlth. 2000). "[A]s an intermediate appellate court, we are bound by the opinions of the Supreme Court." Nunez v. Redevelopment Authority of the City of Philadelphia, 609 A.2d ...