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CASE TO WATCH: Statutory damages cap for Commonwealth Agencies potentially on the chopping block in Pennsylvania 

6/24/24

By: Nicole T. DuGan

The Pennsylvania Supreme Court granted an appeal in Freilich v. SEPTA. Freilich v. Se. Pennsylvania Transportation Auth., 302 A.3d 1261 (Pa. Commw. Ct. 2023), appeal granted, No. 245 EAL 2023, 2024 WL 1044586 (Pa. Mar. 11, 2024). The Court will consider whether the statutory limit on damages against state agencies, as established in 42 Pa.C.S. § 8528(b), is constitutional. The appeal has since picked up speed, with Appellants filing their briefs on June 3, 2024. 

The at-issue statute was enacted in 1978 and limits any individual plaintiff from collecting more than $250,000 per occurrence from the Commonwealth. These statutory caps have remained essentially unchanged since their inception. 

The underlying case arises from an October 2, 2017, bus accident in which a Plaintiff was hit by a SEPTA bus. The bus ran over her left foot, eventually resulting in a partial amputation.  

SEPTA admitted liability but limited any settlement offers to the statutory max of $250,000. The parties entered a stipulated jury verdict – totaling $7,000,000. SEPTA filed a motion to mold the verdict, citing the statutory cap. The trial court granted SEPTA’s Motion and reduced the damages award to a $250,000 gross recovery.  

Plaintiff appealed to the Commonwealth Court, which affirmed the trial court and cited the majority opinion in Zauflik v. Pennsbury School District, 104 A.3d 1096, 1134 (Pa. 2014). In Zauflik, the Pennsylvania Supreme Court rejected the argument that a reduction in recovery is a basis for constitutional violation. The Zauflik Court noted that the legislature was better suited to address the issue of statutory caps.  

Plaintiff then appealed to the Pennsylvania Supreme Court, which granted the Petition. The issues on appeal are two-fold: (1) whether the statute violated Plaintiff’s right to a remedy in Article I, Section 11 of the Pennsylvania Constitution, where Plaintiff’s recovery will be consumed by costs, fees, and insurance reimbursement claims; and (2) whether the statute violates Plaintiff’s right to a jury trial in Article I, Section 6 of the Pennsylvania Constitution where Plaintiff’s recovery will be consumed by costs, fees, and insurance reimbursement claims. The Court further directed parties to address the following question: “[i]f the Court concludes that the limitation of damages set forth in 42 Pa.C.S. § 8528 is unconstitutional, is Section 8528 severable from the limited waiver of sovereign immunity set forth in 42 Pa.C.S. §8522(a)?”  

This is a critical case to monitor moving forward, as it will have resounding effects on personal injury lawsuits brought against Commonwealth agencies. The attorneys at FMG will continue to track this matter as it progresses through appeal. Please do not hesitate to contact Nicole T. DuGan at nicole.dugan@fmglaw.com or your local FMG relationship partner to discuss this critical case.