Freilich v. Septa, No. 10 EAP 2024, review granted Mar. 11, 2024

Pennsylvania Supreme Court to Review Constitutionality of Sovereign Immunity–Based Damages Cap

States, including the Commonwealth, enjoy immunity from suit and have since “before the ratification of the Constitution.” Goldman v. Septa, 57 A.3d 1154, 1172 (Pa. 2012) (quoting Alden v. Maine, 527 U.S. 706, 713 (1999)). “Although the American people had rejected other aspects of English political theory, the doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified.” Alden, 527 U.S. at 715–716 (citing Hans v. Louisiana, 134 U.S. 1, 16 (1890) (“The suability of a State, without its consent, was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted”)). And so, for quite a long time, it has been understood that “[a] State, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter.” Bd. of Liquidation v. McComb, 92 U.S. 531, 541 (1875).

Pennsylvania’s Sovereign Immunity Act, 42 Pa. C.S. §§ 8521–8528, includes both a reassertion of that preexisting immunity, as well as a limited waiver on terms set by the statute. At issue in Freilich v. Septa is the $250,000 cap on damages codified in § 8528(b). The Pennsylvania Supreme Court has agreed to answer the questions whether that limitation on recoverable damages violates either the remedies clause or the jury trial clause under the Pennsylvania Constitution. Pa. Const. Art. I, §§ 11 & 6, respectively.

This case has the potential to be a jurisprudential, to say nothing of an economic, earthquake. Repeatedly, Pennsylvania’s appellate courts have reaffirmed the constitutionality of the damages cap, including against similar challenges raised here. Thus, insurers and municipalities alike have allocated risk and fashioned their annual budgets with statutory damages caps baked into the calculus. But now the Supreme Court has granted review of the case, and its decision could potentially upend that important factor in fiscal considerations.

Briefing is expected to proceed throughout the summer, and the court to set the case for argument this fall or early next year. This is definitely a case to keep an eye on. Cf. Snead v. SPCA, 985 A.2d 909, 913 (Pa. 2009) (recognizing that the purpose of the damages cap is to protect government assets—in other words, taxpayer money—from “depletion through multiple lawsuits”) (quoting James J. Gory Mechanical Contracting v. Phila. Housing Auth., 855 A.2d 669, 677 (Pa. 2004)). 

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