Yanakos, C., Aplts. v. UPMC

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IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
CHRISTOPHER G. YANAKOS, SUSAN : No. 10 WAP 2018
KAY YANAKOS AND WILLIAM RONALD :
YANAKOS, HER HUSBAND, : Appeal from the Order of the Superior
: Court entered July 26, 2017 at No.
Appellants : 1331 WDA 2016, affirming the Order
: of the Court of Common Pleas of
: Allegheny County entered August 29,
v. : 2016 at No. GD-15-022333
:
: ARGUED: October 24, 2018
UPMC, UNIVERSITY OF PITTSBURGH :
PHYSICIANS, AMADEO MARCOS, M.D. :
AND THOMAS SHAW-STIFFEL, M.D., :
:
Appellees :
CONCURRING AND DISSENTING OPINION
JUSTICE DONOHUE DECIDED: OCTOBER 31, 2019
I concur in the result reached by Justice Mundy in the lead Opinion. I respectfully
dissent, however, from the lead Opinion’s conclusion that the right to a remedy
guaranteed by Article I, Section 11 of the Pennsylvania Constitution is not a fundamental
right mandating the application of strict scrutiny to an infringing statute.
Article I, Section 25 of the Pennsylvania Constitution provides:
§ 25. Reservation of powers in people
To guard against transgressions of the high powers which we
have delegated, we declare that everything in this article is
excepted out of the general powers of government and shall
forever remain inviolate.
Pa. Const. art. I, § 25 (emphasis added). Our citizens’ right to a remedy “for an injury
done him in his lands, goods, person or reputation” is enshrined in “this article” in Section
11. Pa. Const. art. I, § 11.
I agree with the lead Opinion that the legislative branch plays a role in guiding the
development of the law. However, for the reasons discussed in this opinion and contrary
to the lead Opinion, I cannot agree with any effort to demote, for the first time, our inviolate
Article I, section 11 rights to mere “important” status. Rather, I would begin with the basic
acknowledgment that the right to a remedy in Article I, Section 11 is a fundamental right
which can only be infringed when there is a showing of a compelling state interest and
that the means chosen to advance it are narrowly tailored to achieve the end. Applying
that test, in my view, the statute of repose in the MCARE Act violates Article I, Section 11
of the Constitution. The test the lead Opinion adopts limits the transgressions of the
General Assembly to those instances where the Commonwealth cannot show that
legislation is “substantially related” to achieving some important governmental interest.
While I agree with the lead Opinion that the MCARE Act’s statute of repose does not even
meet this low threshold, in the larger picture I fear that the undemanding test the lead
Opinion adopts today places an illusory limit on the General Assembly’s prerogative to
infringe on the right to a remedy enshrined in Article I and instead ties this Court’s hands
in fulfilling our obligation to scrupulously protect the right to a remedy afforded in Article
I, Section 11.
The touchstone of interpretation of our state constitution is the “actual language of
the Constitution itself,” League of Women Voters v. Commonwealth, 178 A.3d 737, 802
(Pa. 2018) (quoting Ieropoli v. AC & S Corp., 842 A.2d 919, 925 (Pa. 2004)), and the
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constitutional language “must be interpreted in its popular sense, as understood by the
people when they voted on its adoption. Id. (quoting Jubelirer v. Rendell, 953 A.2d 514,
528 (Pa. 2008)). Article I, Section 11 of the Pennsylvania Constitution provides as follows:
§ 11. Courts to be open; suits against the Commonwealth
All courts shall be open; and every man for an injury done him
in his lands, goods, person or reputation shall have remedy
by due course of law, and right and justice administered
without sale, denial or delay. Suits may be brought against
the Commonwealth in such manner, in such courts and in
such cases as the Legislature may by law direct.
Pa. Const. art. I, § 11. A natural reading of this language does not require resort to any
rules of interpretation, as it plainly and unambiguously provides that our courts are open
to provide every person with a remedy, by due course of law,1 for any injury done to him
in his lands, goods, person or reputation. It gives every citizen of this Commonwealth an
independent constitutional guarantee of legal remedies for private wrongs through our
court system. Craig v. Kline, 65 Pa. 399, 413 (1870) (“This provision and those as to the
administration of justice in the bill of rights, require that all claims for justice between man
and man, shall be tried, decided and enforced by the judicial authority of the state and by
due course of law.”). This foundational entitlement of a right to a remedy in a
1 See Ken Gormley, et al., The Pennsylvania Constitution: A Treatise On Rights And
Liberties, 14.4(c) & n.170 (2004) (hereinafter, the “Gormley Treatise”). According to the
Gormley Treatise, “[a]lthough at times there may have been confusion between the terms
‘due process’ and ‘due course of law,’ it is generally accepted that they are different.” Id.
at 14.4(c) (citing Baggs’s Appeal, 43 Pa. 512, 517)). The right to due process protects
people from deprivations of property or liberty by the government, except “by the law of
the land.” Id. Conversely, the right to “due course of law” provides an “independent
guarantee of legal remedies for private wrongs by one person against another, through
the state’s judicial system.” Id. (quoting Haus Linde, Without “Due Process,” 49 Or. L.
Rev. 125 (1970)).
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Pennsylvania court has been included in every iteration of our Constitution for well over
200 years, dating back to our Constitution of 1790.
Appellants Christopher G. Yanakos, Susan Kay Yanakos and William Ronald
Yanakos (collectively, the “Yanakoses”), have alleged in a lawsuit filed in the Court of
Common Pleas of Allegheny County that that they have suffered injuries as a result of
medical malpractice by Appellees. Section 1303.513 of the Medical Care Availability and
Reduction of Error Act (“MCARE Act”), 40 P.S. § 1303.513, however, establishes a
seven-year statute of repose for medical malpractice claims. The Yanakoses argue that
this statute of repose violates their right to a remedy under Article I, Section 11, as it
prevents them from gaining access to our courts to obtain a remedy for injuries that were
not discovered until after the seven-year period had expired.2 Yanakoses’ Brief at 14.
Here, as in the Superior Court, the Yanakoses raise constitutional challenges to
the MCARE Act’s statute of repose based upon their contention that the right to a remedy
in Article I, Section 11 is a fundamental right and that, as such, any legislative infringement
must be subject to strict scrutiny. Id. at 12, 21. In support of this contention that the right
to a remedy in Article I, Section 11 is a fundamental right, the Yanakoses, like the lead
Opinion, first recite its long and fabled history, from the Magna Carta to Sir Edward Coke.
Id. at 14-16. The Yanakoses then direct us to our decision in James v. Southeastern
Penn. Transp. Auth., 477 A.2d 1302 (Pa. 1984), in which this Court addressed a
2 In the trial court, counsel for the Yanakoses provided notice to the Attorney General of
Pennsylvania pursuant to Rule 235 of the Pennsylvania Rules of Civil Procedure
regarding their challenge to the constitutionality of 40 P.S. § 1303.513. In the Superior
Court and again in this Court, counsel provided similar notices pursuant to Rule 521(a) of
the Pennsylvania Rules of Appellate Procedure. The Attorney General did not enter an
appearance in any of these proceedings in response to these notices.
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constitutional challenge, pursuant to the equal protection provisions of the federal and
Pennsylvania constitutions, to a legislatively-enacted limitation (a six-month notice
requirement) on an injured individual’s right to file suit against the Philadelphia
transportation authority.
The Court in James first set forth the three levels of scrutiny at issue. Where a
suspect classification has been made or a fundamental right has been burdened, the
standard of review is strict scrutiny, pursuant to which a law may only be deemed
constitutional if it is narrowly tailored to a compelling state interest. Id. at 1306; Shoul v.
Comm. Dep't of Trans., Bureau of Driver Licensing, 173 A.3d 669, 676 (Pa. 2017). Where
“important,”3 but not fundamental rights have been affected, or if sensitive classifications
have been made, an intermediate standard of review is applied. James, 477 A.2d at
1306. The Court in James described this level of scrutiny as involving three elements:
(1) the governmental interest is important, though not “compelling,” (2) the governmental
classification or infringement on a right must be drawn so as to be closely related to the
objectives of the legislation, and (3) a person excluded from enjoyment of an important
right or benefit must be permitted to challenge the denial on the grounds that his particular
denial would not further the governmental purpose of the legislation. Id. at 1307. Finally,
if the right is neither fundamental nor important, the legislation only needs to satisfy
“rational basis” review, pursuant to which a law must not be unreasonable, unduly
oppressive or patently beyond the necessities of the case, and the means which it
3 In summarizing challenges to infringement of “important rights,” the Court cited to
Professor Laurence Tribe’s description of them as a significant interference with “liberty
or a denial of a benefit vital to the individual.” James, 477 A.2d at 1306 (quoting L. Tribe,
American Constitutional Law § 16-31 (1978)).
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employs must have a real and substantial relation to the objects sought to be attained.”
Id. at 1306; Shoul, 173 A.3d at 677.
With these standards of review established, the Court in James directed itself to
determining whether the type of right implicated was fundamental, important, or neither
fundamental nor important. James, 477 A.2d at 1306. In this regard, we indicated that
the United States Supreme Court had recently defined “fundamental rights” by stating
that when determining whether the denial of a particular right is deserving of strict scrutiny,
“we look to the Constitution to see if the right infringed has its source, explicitly or
implicated, herein.” Id. (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)); see also Zauflik
v. Pennsbury Sch. Dist., 104 A.3d 1096, 1118 (Pa. 2014) (“Fundamental rights generally
are those which have their source in the Constitution.”). Looking to the text of Article I,
Section 11, we concluded that it contains no right to sue the Commonwealth, as its second
sentence provides an express limitation on the scope of its protections, namely that
“[s]uits may be brought against the Commonwealth in such manner, in such courts and
in such cases as the Legislature may by law direct.” Pa. Const. art. I, § 11. Accordingly,
in James we held that “there is no ‘fundamental right’ to sue the Commonwealth, for such
right is explicitly limited by Art. I, § 11 of the Constitution of Pennsylvania.”4 James, 477
4 For the same reason, this Court in Zauflik applied intermediate scrutiny rather than strict
scrutiny to an equal protection challenge to statutory damages caps on recoveries under
the Tort Claims Act, 42 Pa.C.S. §§ 8501–8564. Zauflik, 104 A.3d at 1120. We held that
the “right” to a full tort recovery “is not a fundamental right warranting strict scrutiny
because the predicate right to bring suit against the Commonwealth or its political
subdivisions is expressly limited” by, inter alia, “Article I, Section 11 of the Pennsylvania
Constitution, which permit[s] the General Assembly to limit recovery against
governmental units.” Id. at 1119. Because we concluded that ”the right involved is an
‘important’ one,” we applied the intermediate scrutiny test set forth in James to decide
“whether the Act's damages cap closely serves an important governmental interest, in
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A.2d at 1306 (“Section 11 itself authorizes the Legislature to enact laws that direct the
way in which a plaintiff might pursue her right to a judicial remedy against the
Commonwealth.”). For this reason, the Court declined to apply strict scrutiny. Id. Instead,
because the appellant nevertheless had “an important interest in access to the courts to
sue the Commonwealth in cases where the Commonwealth had consented to suit,” we
determined that intermediate scrutiny should be employed and applied the three-part test
set forth hereinabove.
The Yanakoses contend that James compels the application of strict scrutiny in
the present context. As the Yanakoses point out, this Court applied intermediate scrutiny
in James because the language of Article I, section 11 carves out an exception for suits
against the Commonwealth. Yanakoses’ Brief at 21 (citing James, 477 A.2d at 1306).
Article I, Section 11 contains no exceptions, however, with respect to actions between
private parties, and thus by implication the opposite must also be true, namely that there
is a fundamental right to a remedy in suits against private entities (like UPMC in the
present case). Id.
The Yanakoses’ contention that James must be read to establish that in actions
between private parties, Article I, Section 11’s right to a remedy is fundamental is amply
supported. In James we held that no fundamental right existed only because the second
sentence of Article I, Section 11 provides an express limitation on the scope of its
protections for suits against the Commonwealth, thus strongly implying that in suits
between private parties, where no such limitation applies, Article I, Section 11 confers a
this instance, the protection of the public treasury against large and unpredictable tort
recoveries.” Id.
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fundamental right.5 We previously articulated this reasoning in Smith v. City of Phila., 516
A.2d 306 (Pa. 1986), a suit filed against the City of Philadelphia and its gas works
corporation after an explosion. In explaining why we were applying intermediate scrutiny
to the plaintiffs’ equal protection claims rather than strict scrutiny, we made it abundantly
clear that the only reason we were doing so was because the suit was against
Commonwealth entities:
No fundamental rights are implicated because the right to a
full recovery in a tort suit brought against the Commonwealth
or its political subdivisions is expressly limited by our
interpretation of … Article I, Section 11 of the Pennsylvania
Constitution (permitting the legislature to limit recovery
against governmental units). Strict scrutiny of the
classification, therefore, is not required.
Id. at 311 (emphasis added). The implication in Smith could not be more clear: except
in suits against governmental units, strict scrutiny is required because there is no other
limitation on the right. I recognize that our decisions in James, Zauflik and Smith all
involved equal protection and/or due process challenges rather than, as here, a direct
claim for violation of Article I, section 11. There is no principled reason, however, to
conclude that a right is fundamental in the context of equal protection and due process
claims but is not fundamental for purposes of a direct challenge under Article I, section
5 As indicated above, in James we also cited with approval the United States Supreme
Court’s definition in Plyler of “fundamental rights.” James, 477 A.2d at 1306. Applying
this definition of “fundamental rights,” the right to a remedy in suits against private entities
clearly “has its source, explicitly or implicitly,” in Article I, Section 11 of the Pennsylvania
Constitution, and is thus a fundamental right.
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11. In fact, this Court has employed this precise constitutional analysis in a direct Article
I challenge to legislation. DePaul v. Commonwealth, 969 A.2d 536, 550 (Pa. 2009).6
Moreover, critical to this Court’s determination of whether the right to a remedy
against private entities in Article I, Section 11 is fundamental is recognition of its
placement in our Constitution. The preamble to Article I, which is entitled the “Declaration
of Rights,” proclaims that it contains the “general, great and essential principles of liberty
and free government.” Pa. Const. art. I, pmbl. Unlike the United States Constitution,
which created a government of limited and enumerated powers,7 the Pennsylvania
Constitution established a government of general powers with the authority to exercise
any and all powers not expressly forbidden therein. Gondelman v. Commonwealth, 554
A.2d 896, 903-04 (Pa. 1989); Commonwealth v. Wormser, 103 A. 500, 501 (Pa. 1918)
(“The Constitution of the state permits the Legislature to enact all laws which are not
forbidden by its letter or spirit.”). Article I, Section 25 invokes special protections to
safeguard the rights set forth in Article I.
§25. Reservation of powers in people
To guard against transgressions of the high powers which we
have delegated, we declare that everything in this article is
excepted out of the general powers of government and shall
forever remain inviolate.
6 In DePaul, this Court found that a complete ban on political contributions to individuals
affiliated with the gaming industry violated Article I, Section 7’s guarantee of freedom of
expression and association because it was not narrowly tailored to achieve the General
Assembly’s compelling interest in negating the corrupting influence and appearance of
large contributions. DePaul, 969 A.2d at 553. This Court held that merely limiting the
size of contributions, rather than prohibiting them entirely, “would be more narrowly drawn
to accomplish the stated goal.” Id.
7 The United States Constitution has no counterpart to Article I, Section 11 of the
Pennsylvania Constitution.
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Pa. Const. art. I, § 25. As a result, the framers of our Constitution intended to restrain our
three branches of government, including the General Assembly, from interfering with the
exercise of the inviolate rights set forth in Article I. Gondelman, 554 A.2d at 903-04 This
Court has recognized the fundamental nature of a wide variety of Article I rights, including
the right to reputational security, the right to petition, the right to free expression, the right
to privacy, the right to marry, the right to procreate and the right to make child-rearing
decisions. See Nixon v. Com., 839 A.2d 277, 287 (Pa. 2003); In re Fortieth Statewide
Investigating Grand Jury, 190 A.3d 560, 572–73 (Pa. 2018); Schmehl v. Wegelin, 927
A.2d 183, 188 (Pa. 2007); Pap’s A.M. v. City of Erie, 812 A.2d 591, 604 (Pa. 2002); Spayd
v. Ringing Rock Lodge, 113 A. 70 (Pa. 1921).
In this regard, when opining on the constitutional dimension of Article I, Section 11,
this Court has always recognized that the right to a remedy set forth therein is a
fundamental right. In Niederman v. Brodsky, 261 A.2d 84 (Pa. 1970), modified on other
grounds by Sinn v. Burd, 404 A.2d 672 (Pa. 1979), this Court held that a plaintiff could
recover for personal injuries from a negligent defendant in the absence of actual impact.
Niederman, 261 A.2d at 85. In so doing, we held that “[i]t is fundamental to our common
law system that one may seek redress for every substantial wrong.” Id. (emphasis
added). In Flagiello v. Pennsylvania Hosp., 208 A.2d 193 (Pa. 1965), this Court abolished
the rule that charitable hospitals were immune from liability in tort, stating that “every
member of society [is guaranteed] a remedy for a palpable wrong inflicted on him by
another member of that society.” Id. at 195 (quoting Parker v. Griswold, 17 Conn. 288,
303 (1844) (“An injury is a wrong; and for the redress of every wrong there is a remedy;
a wrong is a violation of one’s right, and for the vindication of every right there is a
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remedy.”). Indeed, as far back as 1847, this Court recognized that the constitutional right
to a remedy is both “forever excluded from legislative invasion” and “inviolate”:
The bill of rights, which is forever excluded from legislative
invasion, declares that the trial by jury shall remain as
heretofore, and the right thereof be inviolate; that all courts
shall be open, and that every man shall have redress by the
due course of law, and that no man can be deprived of his
right, except by the judgment of his peers or the law of the
land.
Brown v. Hummel, 6 Pa. 86, 90 (1847). In 1859, we further emphasized that Article I,
Section 11 is an express limitation on legislative authority and one that places special
obligations on the judiciary:
The bill of rights, §§ 9, 11, declares that no man shall be
deprived of life, liberty, or property, unless by the judgment of
his peers, or the law of the land; and that the courts shall be
always be open to every man, so as to afford remedy by due
course of law for all invasions of rights, …. It seems to us …
that … [t]hese provisions are … imperative limitations on
legislative authority, and imperative impositions of judicial
duty. To the judiciary they say:—You shall administer justice
to all men by due course of law, and without sale, denial, or
delay; and to the legislature they say:—You shall not
intermeddle with such functions.
Menges v. Dentler, 33 Pa. 495, 498 (1859). The panoply of rights in Article I, Section 11
are fundamental rights. See, e.g., Exton Drive-In, Inc. v. Home Indem. Co., 261 A.2d
319, 322 (Pa. 1969) (“The right to have justice administered without delay is a
fundamental right which should not be infringed unless no other course is reasonably
possible.”); Kelly v. Brenner, 175 A. 845 (Pa. 1934) (refusing to enjoin a local ruling
implementing a procedure to assure a sufficient number of jurors for jury pools, indicating
that Article I, Section 11 contains “fundamental rights which should not be infringed upon,
unless no other course is reasonably possible”); see also Baggs’s Appeal, 43 Pa. at 516-
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17 (“There is nothing plainer in the bill of rights than the principle that all men stand on an
equality before the judicial tribunals, and they do not stand so, if the judiciary is bound to
admit an inequality created by legislative decree, by which a statute of limitations or any
other element of the remedy is set aside or altered for any particular case or person.”).
Regrettably, the lead Opinion finds that “the right to a remedy is not a fundamental
right.” Lead Op. at 10. The lead Opinion’s rationale for this conclusion is that it does not
want to infringe upon the General Assembly’s “prerogative of guiding the formation of the
law.” Id. at 9. The lead Opinion’s interpretative methodology improperly uses its goal of
allowing the General Assembly to meddle with a citizen’s right to a remedy by due course
of law in order to define the nature of the right and thus, the level of scrutiny to apply.
Aside from this reverse engineering, the lead Opinion offers no support for its conclusion
that the right is important but not fundamental.
While I do not disagree that the General Assembly has a role in guiding the
development of the law, this Court may not abdicate its constitutional obligation by
conferring upon that body free reign to do so. As this Court reminded in Robinson Twp.
v. Commonwealth, 83 A.3d 901 (Pa. 2013), the General Assembly's legislative power is
not absolute, as it is expressly restricted by “certain fundamental rights reserved to the
people in Article I of our Constitution.” Id. at 946–47 (citing Pa. Const. art. I, § 25 and
Nat'l Wood Preservers, Inc. v. Commonwealth, 414 A.2d 37, 44 (Pa. 1980)). The
fundamental rights set for in Article I are “inherent in man’s nature and preserved rather
than created by the Pennsylvania Constitution,” and are “specific limits” on legislative
powers. Id. at 947 (citing Appeal of Lord, 81 A.2d 533, 537 (Pa. 1951), Appeal of White,
134 A. 409, 412 (Pa. 1926), and Commonwealth v. Edmunds, 586 A.2d 887, 896 (Pa.
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1991)). Article I, Section 11 thus constitutes a “specific limit” on the power of the General
Assembly to “guide the development of the law,” as it may not do so in ways that deny
our citizens their fundamental rights to seek remedies in our courts for injuries inflicted
upon them. Id. at 947 (citing O'Neill v. White, 22 A.2d 25 (Pa. 1941), Commonwealth ex
rel. Smillie v. McElwee, 193 A. 628 (Pa. 1937), and Commonwealth ex rel. McCormick v.
Reeder, 171 Pa. 505, 33 A. 67 (Pa. 1895)). In this regard, I do not see the application of
strict scrutiny as a bar to the General Assembly’s role in developing the law, but it does
require that any infringing legislation be narrowly tailored to achieve a compelling state
interest.
As support for its observation that the General Assembly may play a role in “guiding
the formation of the law,” Lead Op. at 9, the lead Opinion relies primarily upon this Court’s
skeletal decision in Freezer Storage v. Armstrong Cork Co., 382 A.2d 715 (Pa. 1978). In
Freezer Storage, this Court held that the General Assembly could abolish common law
remedies by way of a statute of repose based upon the observation that no citizen has a
vested interest in the continued existence of an immutable body of negligence law. Id. at
280. There is no limiting principle to this grant of legislative prerogative in Freezer
Storage. Stunningly, the Court in Freezer Storage did not indicate that this power was to
any extent restrained by any constitutional limitations. It rejected the notion that statutes
of repose could violate Article I, Section 11 without conducting any constitutional analysis
or applying any level of scrutiny whatsoever.8
8 Rather than conduct any constitutional analysis, the Freezer Storage Court merely cited
to three prior decisions, also devoid of any constitutional analysis, to support its decision.
None of these cases provides any substantive support for its contention that the General
Assembly may abrogate common law causes of action as it so chooses. Id. at 279-81.
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Cases decided since Freezer Storage have typically involved situations involving
attempts to enforce retroactively legislation that altered a vested legal right.9 In Gibson
v. Commonwealth, 415 A.2d 80 (Pa. 1980), we addressed the implications of our decision
in Mayle v. Pa. Dept. of Hwys., 388 A.2d 709 (Pa. 1978), which abrogated the doctrine of
sovereign immunity, and the General Assembly’s subsequently enacted legislation
reinstating it. With respect to the legislature’s attempt to have its legislation apply
retroactively, we held that Article I, section 11 precluded the Act from governing causes
of action accruing before its enactment. Id. at 83. In Ieropoli, we refused to enforce a
new law limiting damages for asbestos-related injuries in a case filed before enactment
of the legislation. Ieropoli, 842 A.2d at 929-30. In Kondaris v. Portnott Law Assoc., LTD,
953 A.2d 1231 (Pa. 2008), we determined that delinquent taxpayers had no right to be
Of these three cases, one involved a genuine anachronism, specifically, that a husband
may not sue a third party for an act of sexual intercourse with his wife, a cause of action
historically based upon the outdated notion that a wife, like a servant, was the husband’s
personal property. Fadgen v. Lenkner, 365 A.2d 147, 149 (Pa. 1976). In the second
case, Jackman v. Rosenbaum Co., 106 A. 238 (Pa. 1919), the Court refused a claim for
damages, stating that Article I, Section 11 was limited to actual legal injuries, not those
“suffered” pursuant to a centuries-old statute permitting the complained-of behavior. Id.
at 241; see Gormley Treatise § 14.4[g][1] (noting that Jackman is “cited in virtually every
subsequent remedies case, but without any mention of the context – that the plaintiff was
asking the court to overcome a statute whose principles had been established for
hundreds of years”). The third case, Sherwood v. Elgart, 117 A.2d 899 (Pa. 1954),
rejected a challenge to an obscure statute that slightly modified the liability of innkeepers
who provided safe deposit facilities. This Court did so without any discussion or
explanation, id. at 902 (“after considering appellees’ contention we find it to be without
merit”), and whether the Court considered the substance of any arguments proffered by
the appellees is entirely speculative. Again, and significantly, in none of these three cases
did the Court conduct a constitutional analysis – strict scrutiny or otherwise.
9 In Lewis v. Pennsylvania R. Co., 69 A. 821 (Pa. 1908), the Court defined a “vested
right” as follows: “It must be something more than a mere expectation, based upon an
anticipated continuance of existing law. It must have become a title, legal or equitable,
to the present or future enforcement of a demand, or a legal exemption from a demand
made by another.” Id. at 823.
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free from the payment of attorneys’ fees imposed by a statute that included a provision
retroactively requiring their payment for prior delinquencies, concluding that the
challengers had suffered no injury for which they were entitled to a remedy.
The lead Opinion indicates that “[t]his line of cases” (which presumably includes
some combination of Freezer Storage, Gibson, Ieropoli and Konidaris), represents “a shift
away from treating the constitutional protections inherent in the remedies clause as a
fundamental right,” and then cites to Konidaris for the proposition that “[b]ecause this
Court has ‘curtailed’ the reach of the remedies clause in the past, it follows that the right
to a remedy is not a fundamental right.” Lead Op. at 10. No such conclusion follows, for
at least two reasons. First, the mention of “curtailing” the reach of the remedies clause
was a reference to a single prior case, Freezer Storage, in particular its holding that when
eliminating common law causes of action, the General Assembly did not have to provide
any quid pro quo to injured persons when doing so. Freezer Storage, 382 A.2d at 281.
This reference was, however, merely dicta, as this legal principle had no application in
Konidaris.10 In Konidaris we concluded that the General Assembly had not abolished any
10 Despite this reference in Konidaris to Freezer Storage, the Court gave no weight to its
decision. While Freezer Storage had presumably held that the General Assembly was
free to abolish common law causes of action with impunity without providing a quid pro
quo to the injured person, the Court in Konidaris ignored this holding entirely, indicating
that Pennsylvania courts (among others) continue to “vacillate” on these issues:
While courts in this Commonwealth and across the country
vacillate along the spectrum from holding sacrosanct any
injury that was protected under common law at the time a
state adopted its constitution, to allowing for revision only
where the legislature supplies a quid pro quo remedy, to
allowing the legislature free reign to redefine what is a ‘legal
injury,’ all agree that the legislative branch cannot dissolve a
right to recover once a case accrues.
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rights or defenses of the delinquent taxpayers at all and as a result Article I, section 11
simply had no application. Konidaris, 953 A.2d at 1242 (“They fail to demonstrate,
however, how their right not to do something is the same as an affirmative defense against
an accrued cause of action, which is premised on an injury done to a person.”). We
emphasized that the purpose of Article I, section 11 is “the protection from legislative
action of an individual’s remedy for an injury done,” and concluded that “[i]n this case, no
injury was done.” Id.
Second, as with Konidaris, neither Gibson nor Ieropoli reflect any “curtailing” of the
scope of Article I, section 11. Quite to the contrary, in these cases the Court applied a
foundational principle of Article I, section 11 jurisprudence that may be traced at least as
far back as our Menges decision in 1859 – namely that Article I, section 11 protects the
right of litigants to be free from legislative interference with a vested (i.e., accrued) legal
right.
The law which gives character to a case, and by which it is to
be decided (excluding the forms of coming to a decision), is
the law that is inherent in the case, and constitutes part of it
when it arises as a complete transaction between the parties.
If this law be changed or annulled, the case is changed, and
justice denied, and due course of law violated.
* * *
When, therefore, the constitution declares that it is the
exclusive function of the courts to try private cases of disputed
right, and that they shall administer justice “by the law of the
land,” and “by due course of law;” it means to say, that the law
relating to the transaction in controversy, at the time when it
is complete, shall be an inherent element of the case, and
shall guide the decision; and that the case shall not be altered,
in its substance, by any subsequent law.
953 A.2d at 1242 (citing David Schuman, The Right to a Remedy, 65 Temp. L. Rev. 1197,
1206 (1992)).
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Menges, 33 Pa. at 495; see also Kay v. Pa. R.R. Co., 65 Pa. 269, 277 (Pa. 1870) (“[W]e
are bound therefore to say that this law is retrospective in its operation on this case,
deprives the plaintiff of a vested right, and is inoperative.”); Lewis v. Pennsylvania R. Co.,
69 A. 821, 823 (Pa. 1908); Com. ex rel. Margiotti v. Cunningham, 10 A.2d 559, 565 (Pa.
1940). In Gibson, we summarized these cases and others as holding that “[i]t is well-
settled that the Legislature may not extinguish a right of action which has already accrued
to a claimant.” Gibson, 415 A.2d at 82. Gibson and Ieropoli are both textbook
applications of this basic principle. In Gibson, the Court refused to permit the General
Assembly to eliminate retroactively their vested causes of action against the
Commonwealth prior to enactment of sovereign immunity legislation. Gibson, 415 A.2d
at 83. In Ieropoli, the Court held that the legislation at issue eliminated the plaintiffs’
causes of action and thus held that its “application to [the plaintiffs’] causes of action is
unconstitutional under Article I, section 11.” Ieropoli, 842 A.2d at 930.
These decisions enforced, and in no respect limited, the rights granted in Article I,
Section 11. Because they addressed the application of Article I, section 11 to legislative
interference with vested rights, it was unnecessary for the Court to determine whether the
rights granted under that provision were fundamental, and indeed none of the cases
addressed that issue at all. The propriety of the legislature’s ability to eliminate a
prospective (unvested) cause of action was not in question in those cases, as it is here.
Here the General Assembly passed the MCARE Act’s statute of repose in 2002, prior to
the accrual of the Yanakoses’ claim in 2003. Enactment of the MCARE Act’s statute of
repose thus eliminated a prospective cause of action for medical malpractice. For
present purposes, therefore, the correlative case is Freezer Storage, in which the Court
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acknowledged its understanding that it was confronting a circumstance involving
prospective rather than vested legal rights. Freezer Storage, 382 A.2d at 279 n.4 (“It
should be acknowledged that appellant makes no claim that this statute deprives him of
a cause of action which had already accrued to him before the statute became effective.”).
As discussed above, in Freezer Storage this Court held that the legislature is free
to abolish common law causes of action without any constitutional limitations on its
legislative prerogative to do so. The Court did not even consider the possibility that Article
I, section 11 might require the implementation of necessary constitutional protections
before the prospective legal rights of our citizens to a remedy may be eliminated. We
have been asked by the Yanakoses in this case to do what was not done in Freezer
Storage – to decide whether the legislature’s ability to abolish causes of action is subject
to limitations under Article I, section 11 and, if so, to conduct a constitutional analysis to
determine the level of scrutiny that must be employed commensurate with the placement
of a remedies clause in Article I of our charter. By subjecting the MCARE Act’s statute of
repose to intermediate scrutiny, the lead Opinion’s decision abrogates Freezer Storage,
as it places a constitutional limitation on the General Assembly’s power to eliminate
common law causes of action. My disagreement is certainly not with the lead Opinion’s
decision to reject Freezer Storage, but rather with the level of scrutiny that must be
applied. Puzzlingly, the lead Opinion appears to be simultaneously rejecting Freezer
Storage’s unreasoned carte blanche deference to the General Assembly, while at the
same time relying on the case to justify its application of intermediate rather than strict
scrutiny. The lead Opinion does not explain how Freezer Storage could have any
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precedential value with regard to whether the rights conferred in Article I, section 11 are
fundamental, as the case did not even broach the topic (much less decide it).11
As I believe that Article I, section 11 is a fundamental constitutional right, I am also
of the view that the proper test for determining whether it has been violated is strict
scrutiny. See, e.g., Shoul, 173 A.3d at 676. To satisfy the requirement of narrow tailoring,
there is a heavy burden to justify the statutory scheme at issue by demonstrating that the
enactment has been “structured with ‘precision,’” which in turn requires that the General
Assembly has “selected the ‘less drastic means' for effectuating its (compelling)
objectives.” San Antonio School District v. Rodriguez, 411 U.S. 1, 17 (1973); DePaul,
969 A.2d at 553. To say that the statute of repose provision in the MCARE Act was not
narrowly tailored is, in my view, self-evident. The statute of repose is just one of
numerous procedural and substantive devices included in the MCARE Act to limit or
eliminate the availability of remedies to individuals injured by the alleged malpractice of
health care providers.12 The General Assembly adopted these multiple measures without
11 We may well question whether Freezer Storage has any Article I, section 11
precedential value at all, given its complete lack of any substantive constitutional analysis.
This Court has held that decisions devoid of reasoned analysis have “very little if any
precedential value.” William Penn Sch. Dist. v. Pa. Dept. of Educ., 170 A.3d 414, 443
(Pa. 2017) (citing Ario v. Reliance Ins. Co., 980 A.2d 588, 598 (Pa. 2009) (Saylor, J.,
concurring)); cf. Kenneth Anthony Laretto, Precedent, Judicial Power, and the
Constitutionality of “No-Citation” Rules in the Federal Courts of Appeals, 54 Stan. L. Rev.
2017, 1050 (2002) (“[J]udicial decisions are precedential authority unless they contain a
negligible amount of legal reasoning … [and the] act of adjudication alone … cannot
sustain the precedential authority of a decision that is not solidly grounded in legal
reasoning.”).
12In addition to the statute of repose, the MCARE Act eliminated, inter alia, the collateral
source rule, 40 P.S. § 1303.508; the prohibition on reducing damages to present worth,
40 P.S. § 1303.510; the allowance of lump sum awards for future damages, 40 P.S. §
1303.509; and the plaintiff’s choice of forum.
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any studied analysis of the impact of any particular measure on the desired legislative
goal. Contextually, the statute of repose appears to be an add-on to the unstudied list of
multiple restraints to reduce malpractice claims and damage awards in the surviving
lawsuits.
The lead Opinion correctly concludes that the MCARE’s statute of repose does not
even satisfy the test for intermediate scrutiny (that the legislation is “substantially related”
to achieving some important governmental interest). The lead Opinion’s analysis
establishes that there was no evidence to connect the measure with any effect on the
legislative goal of reducing malpractice insurance premiums. Concurring Op. at 11-16.
No evidence of record establishes that the MCARE Act’s seven-year statute of repose
would have a significant effect on medical malpractice insurance rates (particularly given
the exceptions for foreign objects cases and those brought by minors). Id. at 15-16.
Given that the MCARE Act’s statute of repose cannot meet the less exacting
substantial relationship test, it is beyond dispute that the MCARE Act’s statute of repose
cannot meet the strict scrutiny test. However, by concluding that the right to a remedy is
important but not fundamental, the lead Opinion would empower the General Assembly
to abolish a cause of action if it can demonstrate a “substantial relationship” to a stated
goal. The General Assembly need not establish that the governmental interest is
compelling or that the legislative goal could not be accomplished without depriving a
citizen of her right to a remedy. The lead Opinion would adopt a rule that will require a
deference to the legislative branch that Article I, section 11 does not permit. I cannot
agree with the Court’s decision to adopt this diluted constitutional analysis. It is our role
as the judicial branch of government to scrupulously protect the right to a remedy afforded
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by Article I, Section 11 and to give it due recognition as a fundamental right. Over
centuries of jurisprudence, this Court has heretofore recognized the fundamental nature
of this right in the cases in which we took the time to consider its constitutional dimension
and the appropriate level of scrutiny to view legislative infringements – strict scrutiny. In
a challenge like the one presented here, where the statute, on its face, establishes a
plethora of means to achieve the stated governmental interest that are less restrictive
than the abolition of a right to a remedy, the unconstitutionality of the MCARE Act’s statute
of repose should be readily apparent.
For these reasons, I concur in the result, namely that the MCARE Act’s statute of
repose is unconstitutional. I dissent from section II of the lead Opinion’s opinion in its
entirety. I join in section I and in section III to the extent that this section holds that the
MCARE’s statute of repose does not even satisfy the test for intermediate scrutiny (and
thus plainly would not meet the more exacting test for strict scrutiny).
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