[J-39-2014] [MO: Castille, C.J.] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

**ASHLEY ZAUFLIK, Appellant** 

**v.**

**PENNSBURY SCHOOL DISTRICT, Appellee**  **: :**  **: :**  **: :**  **: :**  **: :**  **: No. 1 MAP 2014**  **Appeal from the Order of the Commonwealth Court**  **dated July 3, 2013 at No. 1219 CD 2012 affirming the order of**  **the Bucks County Court of Common Pleas, Civil Division, dated May 24, 2012,**  **Judgment Entered June 7, 2012, at no. 2007-09693-27-1.**  **ARGUED: May 6, 2014**

CONCURRING OPINION

MR. JUSTICE BAER DECIDED: November 19, 2014 **I join the finely crafted majority opinion in its ent irety. I write separately because I**  **can envision a scenario where a personal injury victim i s able to prove that the $500,000**  **statutory cap on damages, which has not been increased since its enactment in 1978,**  **violates the right to a jury trial as guaranteed by A rticle I, Section 6 of the Pennsylvania**  **Constitution. The majority holds that Article I, Secti on 6 precludes the imposition of**  **“onerous procedural barriers” on the exercise of the jury trial right but that the statutory**  **damages cap at issue herein affects a different matter,** i.e. **, a substantive limit on the damages ultimately recovered after a full jury trial.**  **Slip Op. at 59. Although I agree with the majority that the jury trial Appellant demanded**  **and received was not impaired in the instant case, it appears to me that through a properly**  **developed record, a victim may be able to establish that the statutory damages cap constitu**  **tes an onerous procedural barrier to the jury trial right in violation of Art**  **icle I, Section 6. [J-39-2014] [MO: Castille, C.J.] - 2** 

**Article I, Section 6 provides “[t]rial by jury shall be as heretofore and the right** 

**thereof remain inviolate.” P A** 

**. C**  **ONST**

**. art. I, § 6. Based on this provision, the petitioner**  **in the case of Application of Smith, 112 A.2d 625 (Pa . 1955), challenged a statute and**  **local rule of court promulgated pursuant to that statut e, which required compulsory**  **arbitration of certain claims where the sum requested was less than a specified amount.**  **The statute afforded a right to appeal the arbitrato rs’ decision to the trial court where a jury**  **trial could be conducted, but required that the party appealing the arbitration award pay**  **the arbitrators’ fee. The petitioner argued that th e statutory requirement that the**  **appellant pay the fee constituted an onerous and uncons titutional restriction upon the**  **right to present his case to a jury. This Court rejected the contention that the payment of**  **the arbitrators’ fees constituted an onerous condition, but acknowledged that**  **one’s ability to present an issue to a jury “must not be burdened by the imposition of**  **onerous conditions, restrictions or regulations which would make the [jury trial] right p**  **ractically unavailable.” Id. at 629. The Court reasoned that the payment of the arbitrato**  **rs’ fee was akin to requiring the payment of a jury fee as a condition precedent to the**  **right of a jury trial, which had previously been upheld. Id. at 630 (citing Gottschall**  **v. Campbell, 83 A. 286, 291 (Pa. 1912) (holding that the payment of a jury fee did n**  **ot impose a substantial burden upon the constitutional right to a jury trial)).**  **We explained that “[t]he problem, however, is one of degree rather than of kind.”**  **Id. at 630. We held that where a claim sought such a small amount of damages that the**  **necessity of paying the arbitrators’ fee would operate as a strong deterrent to seeking a**  **jury trial, the local court rules should provide for a lower rate of compensation for the**  **arbitrators. Id. Accordingly, we upheld the validity of the statute, but opined that the** 

**local rule of court should be amended to lower the arb itrators’ fee where a comparatively** **[J-39-2014] [MO: Castille, C.J.] - 3**

**small claim is involved, in order to prevent the practi cal denial of the jury trial right. Id.**  **Our analysis in Smith suggests that a statutory requireme nt that renders cost-prohibitive**  **the exercise of the jury trial right violates Article I , Section 6. This becomes relevant**  **when one considers the practicalities of litigating a ca tastrophic injury case against a**  **political subdivision. While there is no evidentiary r ecord concerning the costs and fees**  **incurred to prosecute the instant litigation, I believ e that a victim of a political subdivision’s**  **negligence in a complicated case may be able to establish that the costs and fees of**  **litigating the claim precluded counsel from accepting t he case, thereby denying the victim**  **the right to present the case to a jury. To meet the well-financed and vigorous defenses asserted**  **by insurance companies and their counsel and to comply with basic Penn**  **sylvania law, I conclude, premised on my thirteen years as a trial court judge,**  **that plaintiffs’ counsel in complex litigation are required to retain multiple liabilit**  **y and damages experts who are, in turn, mandated to develop their theories to a reasonable d**  **egree of certainty, provide detailed expert reports, sit for depositions, and often provide**  **live testimony at the cost of tens of**

**thousands of dollars. Distinct from 1978, when the statutory damages cap was en**  **acted, it is now necessary and extraordinarily expensive to produce dem**  **onstrative evidence such as complex accident reconstructions, biomechanical and human**  **factor recreations, “day in the life” videos, as well as other types of recreations a**  **nd animations. These are often used in opening statements and closing arguments, as well**  **as during trial, necessitating complex and careful development to ensure admissibility,**  **and requiring an operator to coordinate the audio-visual display as counsel presents the**  **case. There are also enormous sums expended for discovery and mediations, wh**  **ich each cost thousands or tens of thousands of dollars, as well as the inevitable m**  **iscellaneous expenditures for [J-39-2014] [MO: Castille, C.J.] - 4** 

**travel, lodging, meals and the like, which aggregate t hroughout all complex litigation. All**  **of these expenses are without consideration of the contin gent fees and general overhead**  **every lawyer must charge and consider before accepting a case.**  **Simply put, plaintiffs’ counsel cannot responsibly ag ree to enter an appearance in** 

**a case where there will be no or** de minimis **return to the client because of the costs and fees necessary to secure a successful result. Counsel also ca**  **nnot accept a case where required costs are disproportionate to a potential fee.**  **It would simply be “bad business,” notwithstanding the empathy the lawyer would feel fo**  **r an injured client, to risk tens or hundreds of thousands of dollars in costs in light of the**  **statutorily imposed cap on**

**recovery. It is obvious that money in 2014 does not spend as it**  **did in 1978. Notably, that year the Governor of Pennsylvania earned somewhere ar**  **ound $70,000. Today his salary exceeds $180,000. In 1978, a member of the Gen**  **eral Assembly, which passed the cap under scrutiny herein, earned $25,000 a year.**  **Today a legislator earns approximately $84,000. Notwithstanding this clear ev**  **idence of inflation, the cap remains the same. In accord with the Smith analysis, assuming an**  **evidentiary proffer that $500,000 would not cover costs and fees incurred in pursu**  **ing complex personal injury litigation, it would appear that the statutory cap pr**  **esents an “onerous procedural barrier” to an injured plaintiff’s guaranteed right to a jury**  **, and, thus, violates Article I, Section 6. We must, however, await the development of a record b**  **efore so holding. Having said all this, I hope the Legislature renders t**  **his analysis and any future litigation moot. I would like to think that the fail**  **ure to raise the cap has been inadvertent on its part. In its wisdom, it decided to create these**  **causes of action against government subdivisions to protect our citizenry against the tyranny**  **of injury without compensation. As evidenced by the record in this case and discussed below,**  **many political subdivisions [J-39-2014] [MO: Castille, C.J.] - 5** 

**are able to purchase affordable insurance equal to a r easonable cap. It is my hope that**  **the Legislature will become cognizant of its oversight through this case, raise the cap to a**  **level that is obviously constitutional, and thereby prot ect the people it serves while**  **safeguarding governmental entities by allowing for or , indeed, mandating reasonable**  **insurance to protect them in an amount equivalent to t he statutory damages cap.**  **In furtherance of these thoughts, I highlight two sali ent points. First, the**  **defendant in this case, Pennsbury School District, carries $ 11 million in insurance, to**  **protect itself against all manner of potential liabil ity. The record herein does not indicate**  **what it would cost to extend this insurance to the op eration of motor vehicles by the**  **school district, but I suspect that the cost would be a rela tively small percentage of an**  **overall school district budget. Moreover, it is significa nt that the Public Utility**  **Commission has provided that to the extent school district s contract with private carriers**  **to shuttle students, those contractors must carry at least $5 million in liability insurance.**  **See 52 Pa. Code § 32.11(d) (requiring a common carri er of passengers on a motor**  **vehicle capable of transporting more than 28 passengers to carry at least $5 million in**  **liability insurance). Accordingly, it is my hope that this case will serve as a**  **n impetus for legislative action to increase the $500,000 limitation on recovery f**  **rom political subdivisions before this Court is constrained to analyze this issue on a record**  **developed in accord herewith. Madame Justice Todd and Mr. Justice Stevens join this con**  **curring opinion.**