Pennsylvania’s Statutory Damages Caps Remain for Commonwealth and Local Agencies Per Pennsylvania Supreme Court

Pennsylvania statutorily caps the amount of damages recoverable on tort claims against Commonwealth and local agencies (Section 8528(b) of the Sovereign Immunity Act caps damages against Commonwealth agencies to $250,000; Section 8553(b) of the Political Subdivision Tort Claims Act caps damages against local agencies to $500,000). On October 1, 2026, the Pennsylvania Supreme Court rejected the constitutional challenge to the Sovereign Immunity Act’s damages cap, as applied, in Freilich v. SEPTA. In its decision, the Court pointed to its 2014 ruling in Zauflik v. Pennsbury School District, which rejected a facial constitutional challenge to the Political Subdivision Tort Claims Act’s damages cap. These rulings have made it clear that it is up to the legislature, not the courts, to revise or otherwise change the damages caps.

For more detail, the following discussion includes the parties’ positions and the Court’s decision in Freilich. The parties entered into a stipulated verdict of $500,000 (past economic), $500,000 (future economic), and $6,000,000 (non-economic) in lieu of a jury trial on Plaintiff Freilich’s tort claims. When SEPTA thereafter moved to mold the verdict to conform it to the $250,000 statutory damages cap, Freilich opposed the motion on the ground that the damages cap was unconstitutional as-applied to the facts of her case because, among other reasons, Freilich’s net recovery from the capped $250,000 judgment would have been roughly $90,462 or less after litigation costs, counsel fees, and insurer reimbursement claims. Both finding themselves bound by the Supreme Court’s decision in Zauflik, the trial court rejected Freilich’s constitutional challenge to the damages cap and granted SEPTA’s motion to mold the verdict to the cap, and the Commonwealth Court subsequently affirmed on appeal.

Granting Freilich’s allocatur petition, the Supreme Court specifically assessed whether the damages cap as applied to the facts of Freilich’s case violates the right to a jury trial under Article I, Section 6 of the Pennsylvania Constitution and/or the right to a remedy under Article I, Section 11 of the Pennsylvania Constitution. Chief Justice Todd—writing for the majority in which Justices Dougherty, Mundy, and Brobson joined—answered both questions in the negative.

The damages cap does not violate Article I, Section 6 of the Pennsylvania Constitution. First, the Court held that “under Article I, Section 6, the legislature has not unconstitutionally deprived [Freilich] of her right to trial by jury, as applied to her circumstances, through Section 8528(b)’s $250,000 cap on damages” because Section 6’s inviolate clause protects the process of a jury trial, not the amount ultimately recovered. “Because a gross recovery capped at $250,000 would produce no or a de minimis net financial recovery,” Freilich argued that, “in her view, the cap places onerous practical impediments to pressing her case, and so makes a jury trial practically unavailable, rendering the cap constitutionally infirm.”  Following Zauflik, however, the Court explained that “the right to a jury trial in Pennsylvania is the right to a process, and [Freilich] was entitled to that process. While [Freilich] may receive only a de minimis or no recovery in her case,” the Court noted that “she could have had a full trial by jury.” The damages cap does not prohibit a jury trial, limit a plaintiff’s presentation, or prevent a jury from returning a full verdict; rather, it only limits the amount recoverable from the Commonwealth after the verdict. A diminished or de minimis recovery goes to the result, not the availability or contours of the trial, and “there is no constitutional right to a complete recovery on a jury’s verdict.” And, notably, Freilich was in fact able to fully prosecute her case and chose a stipulated verdict rather than presenting her case to a jury.

The damages cap does not violate Article I, Section 11 of the Pennsylvania Constitution. The Court then found that the damages cap does not violate the right to a remedy under Article I, Section 11 of Pennsylvania’s Constitution. While Freilich did “not contest the General Assembly’s power to place general limitations on liability in favor of a government unit[,]” she claimed that “the cap violates her right to a remedy . . . because the fees and costs of litigating her case rendered a trial economically unfeasible and a remedy illusory.” Relying on its 1986 decision in Smith v. City of Philadelphia, the Court rejected Freilich’s argument on the ground that “a cause of action may be limited by the General Assembly, and if it may abolish a claim entirely, essentially setting the limit on damages at $0, then it follows that the legislature may waive sovereign immunity in some instances, and may limit damages to $250,000, even if this amount renders [Freilich]’s recovery nugatory. . . . Indeed, to afford [Freilich] relief on an as-applied basis would be contrary to our holdings for over 40 years regarding the General Assembly’s unfettered authority with respect to recovery against the Commonwealth.” In reaching this conclusion, the Court found it important to explain:

Article I, Section 11, guarantees an important substantive right of access to courts for the redress of wrongs, but it is not absolute and does not guarantee a remedy for every claimed wrong. As our case law makes clear, it is for the legislature to provide for remedies, including any limitations on the type or amount of the remedies. The crafting of permissible recoveries necessarily involves balancing the compensation of injuries with the protection of the public purse. With limited public funds, payments of multimillion dollar awards would necessarily impact other areas of government spending; as several amicus briefs stress, there are real world consequences of raising the $250,000 cap. While [Freilich] maintains that our decision will impact only her, highlighting that her challenge is on an as-applied basis, this simply is not true. Although catastrophic claims against the Commonwealth are uncommon, they nonetheless have the potential to be devastating. Given the similarity of the governing immunity statues, a decision undermining the damages cap in this case would likely impact core government functions, affecting other government agencies, local political subdivisions, courts and prisons, school districts, and transportation systems. . . . Thus, while we are sympathetic to [Freilich]’s predicament, we are nonetheless cognizant of our role in our tripartite constitutional framework, and believe that [Freilich]’s plea for change in this area is properly made to the legislature.

Three separate concurring opinions were also issued. Chief Justice Todd (joined by Justices Dougherty and Mundy) explained in his concurring opinion that he felt “compelled to write separately, unconstrained by majority authorship, to highlight what [he] believe[d] to be an unconscionable failure on the part of the General Assembly to raise the limits of this statutory cap in 40 years” and thus “call[ed] upon our General Assembly to revisit Section 8528(b) and increase the statutory damages cap to an amount commensurate with a reasonable recovery for all of our citizens injured by the Commonwealth.” Justice Doughtery (joined by Justice Mundy) wrote separately to note that he felt “compelled to agree with the majority that it would be ‘unfair’ for this Court to retroactively convert on our own motion Freilich’s claims into ‘a facial challenge’” when “Freilich made a strategic decision to raise narrow, as-applied constitutional challenges for purposes of this litigation, and she expressly disclaims the argument that we should overrule any precedents or deem the damages cap facially unconstitutional.” And Justice Wecht separately concurred to explain her “analysis of Sections 6 and 11” of Article I of the Pennsylvania Constitution that “differs in some respects from that of the Majority,” but nevertheless led her to agree that “the statutory damages cap does not violate these constitutional provisions.”

Justice Donohue (joined by Justice McCaffery) dissented from the majority’s opinion to largely opine that Smith v. City of Philadelphia—on which the majority relied—is “fatally flawed and its conclusion palpably incorrect” because, “[i]n reaching its decision, the Smith Court relied on conclusory reasoning and a mistaken understanding of history” and “engaged in a cursory constitutional analysis that is woefully insufficient by today’s standards and those at the time Smith was decided.” And because “Smith’s distorted holdings prevent any reasoned consideration of a challenge like Freilich’s that questions the authority of the Legislature to limit the recovery of a tort victim who otherwise has a right to sue the Commonwealth[,]” Justice Donohue would “revisit [Smith] sua sponte . . . . overrule Smith[,] and hold Section 8528’s cap on damages unconstitutional.”

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