Howard Bashman.

Every now and then, an appellate judge will write a concurring or dissenting opinion in which he not only laments the current state of the law but also takes the additional step of imploring the legislature to implement changes to provide for a more just result in the future.

Take Justice Max Baer's concurring opinion issued Oct. 31, 2019, in Grove v. Port Authority of Allegheny County, 218 A.3d 877 (Pa. 2019), for example. In that case, a jury had awarded $1,365,500 in damages to the plaintiff against defendant Port Authority of Allegheny County, whose bus collided with Joan Grove and ran over her leg, requiring its amputation. A Pennsylvania statute enacted in 1980 limited a plaintiff's recovery against a commonwealth agency to $250,000, and thus Grove's verdict had been reduced to that amount before judgment was entered in her favor.

In his concurring opinion in Grove, Baer—joined by three other justices—stated that he wrote separately "to emphasize what I view to be a substantial injustice, and perhaps a constitutional violation, arising from the application of the current statutory damages cap placed on awards in civil cases commenced against a commonwealth agency." That a total of four justices joined in Baer's concurring opinion is noteworthy, given that the views expressed therein thus received the endorsement of a majority of the seven-justice court.

Baer noted that a little more than five years earlier, in his concurring opinion in Zauflik v. Pennsbury School District, 104 A.3d 1096 (Pa. 2014), he had questioned the constitutionality of a $500,000 statutory cap on personal injury damages against local government agencies that dated back to 1978. Only two other justices had joined Baer's concurring opinion in Zauflik, and thus it did not speak for a majority of the court in 2014.

Baer's recent concurring opinion in Grove observed that nothing had changed in response to his earlier concurring opinion in Zauflik: "Nearly five years have passed, and the General Assembly has not amended the relevant statutes to increase the cap on damages recovered against local governments or the commonwealth to account for all realities, including simple inflation, that have occurred over the many decades since the statutory caps were enacted."

In the concluding paragraph of his concurring opinion in Grove, Baer "urged the General Assembly to take swift action to remedy the situation by increasing the statutory limits" on damages against both commonwealth and local government agencies. He concluded his concurring opinion with something that resembled a warning: "In the event that the Legislature does not so act, this court may be faced with a developed challenge to the statutory caps as violative of the constitutionally guaranteed right to a jury trial. If a plaintiff properly constructs a record to establish that the statutory caps place an onerous burden on his or her right to a jury trial, this court may be compelled to strike the cap, which could leave the commonwealth or the local governments exposed to full liability if, and until, new legislation is passed."

In other words, according to Baer, Pennsylvania's legislature essentially is now confronted with the following choice: either increase the statutory caps on damages available against commonwealth and local governments to more reasonable amounts, or face the consequences of a future case in which the existing limits are invalidated and claimants will be able to recover unlimited damages unless and until lawful replacement damages caps are enacted. The fact that a majority of the Pennsylvania Supreme Court has endorsed this view should be more than sufficient to capture the legislature's attention. Whether in fact it will remains to be seen.

Although it happens infrequently, judges calling on legislatures or legislative-like bodies for change is not a new development. I recall back during my clerkship for a U.S. Court of Appeals for the Third Circuit judge that occasionally judges would write separate opinions to bring issues that might be worthy of change to the attention of rulemaking bodies and to the U.S. Sentencing Commission in sentencing guidelines cases.

Perhaps the most noteworthy example of a judicial call for legislative change resulting in concrete action to overturn a court's decision arose over a decade ago after the U.S. Supreme Court issued its ruling in Ledbetter v. Goodyear Tire & Rubber, 550 U.S. 618 (2007). In that case, the plaintiff had alleged that, as the result of sex discrimination that had occurred long ago, every paycheck that she received was lower in amount than the paychecks received by men working in comparable jobs.

The Supreme Court ruled, by a 5-4 vote, in a majority opinion written by Justice Samuel A. Alito, that because the actual sex discrimination had preceded the current statute of limitations period, the fact that its consequences continued to be reflected in each paycheck did not give Ledbetter a timely new claim for sex discrimination each new pay period. Justice Ruth Bader Ginsburg issued a lengthy dissent that concluded, "Once again, the ball is in Congress' court. As in 1991, the Legislature may act to correct this court's parsimonious reading of Title VII."

Ginsburg's dissent did not go unnoticed. Democratic legislators promptly introduced a bill to overturn the Ledbetter decision and to provide that a new claim for sex discrimination arose each pay period that the discrimination resulted in a smaller paycheck based on sex. In April 2008, however, Republicans in the U.S. Senate defeated the legislation. As a result, whether the Ledbetter decision should be reversed became an issue in the November 2008 presidential election, with Democratic candidate Barack Obama supporting the legislation while Republican candidate John McCain opposed it.

Not only did Obama become president in 2008, but the Democratic party regained control of the U.S. Senate. As a result, on Jan. 29, 2009, Obama signed into law the Lilly Ledbetter Fair Pay Act of 2009, which—as Ginsburg had suggested—provided that a new, separate statute of limitations arose for filing an equal-pay lawsuit alleging sex discrimination for each new paycheck affected by an earlier discriminatory action.

Ginsburg's dissent in Ledbetter demonstrates that a judicial call for legislative action can obtain results. Whether Baer's continuing call for raising the caps on damages against state and local governments will achieve a similar outcome remains to be seen.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached at 215-830-1458 and via email at [email protected]. You can access his appellate web log at howappealing.law.com and via Twitter @howappealing.