Zauflik v. Pennsbury Sch. Dist., No. 1219 C.D. 2012

CourtCommonwealth Court of Pennsylvania
Writing for the CourtRENÉE COHN JUBELIRER
PartiesAshley Zauflik, Appellant v. Pennsbury School District
Docket NumberNo. 1219 C.D. 2012
Decision Date03 July 2013

Ashley Zauflik, Appellant
Pennsbury School District

No. 1219 C.D. 2012


Argued: February 11, 2013
FILED: July 3, 2013



Section 8553 of what is commonly known as the Political Subdivision Tort Claims Act1 (Tort Claims Act) limits recovery of damages against political

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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,2 for catastrophic

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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.3 (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.4 After a jury trial on damages only, on

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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

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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 depositions5 of District's business administrator, Isabel Miller, both in her personal capacity and as District's designee, and several additional District representatives, including the

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following third-party administrators for the School Claims Service: David Witmer, Kelby Leonard, and L. Roeg Williamson.6

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

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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.7

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:8 (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

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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.9

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....

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