Kirkbride v. Lisbon Contractors, Inc.

CIRILLO, President Judge:

The issue presented to this Court is whether a jury’s award of punitive damages must bear a reasonable relationship to the amount awarded as compensatory damages. Specifically, did the trial court err when it instructed the jury to the effect that no such relationship need exist? ¹

The subject jury charge followed a trial initiated by the Kirkbrides, owners of property that is part of a wooded, thirty-acre tract in East Cain Township, Chester County. The Kirkbrides’ lot fronts for about 120 feet on Norwood Road and extends across a ridge back to a former railroad easement that runs parallel to the Brandywine Creek for more than 1000 feet behind their property. In 1977, the Uwchlan Township Municipal Authority obtained the former railroad easement for construction of a sewer line. Later that same year, Chester County took the easement outright to build a bike path and jogging trail over the sewer line. The Uwchlan Township Municipal Authority subsequently contracted with appellant, Lisbon Contractors Inc., to construct the sewer line and bike path.

Work on the project started in February, 1978. Early in the job, appellant’s bulldozer turned onto the Kirkbride’s property from the sewer line right of way and drove toward Norwood Road, making a clearing for about 1,200 feet. This clearing was later used as a storage area. During the restoration work, after the sewer line was completed, appellant pulled down an 800 foot embankment on the Kirkbride property, immediately parallel to the construction right of way, and regraded the slope to meet the adjoining hillside along the sewer line and bike path.

In June of 1979, the Kirkbrides instituted a suit in trespass as a result of appellant’s actions. Following trial, the jury returned a verdict of $7,000 in compensatory damages and $70,000 in punitive damages for the land marred by the bulldozer, and $12,000 in compensatory damages, but no punitive damages, for the embankment which was regraded. Appellant timely filed motions for judgment n.o.v. and a new trial which were denied after argument. This appeal followed.

Appellant had requested the trial court to instruct the jury that the amount of an award of punitive damages must be reasonable and may not be disproportionate to any award of compensatory damages. The trial court refused to so instruct and instead, over appellant’s objection, charged the jury as follows:

The amount you assess as punitive damages need not bear any relationship to the amount you choose to award as compensatory damages, and it is not necessary that you award compensatory damages to the plaintiffs in order to assess punitive damages against the defendant so long as you find in favor of the plaintiffs, as we tell you to do, on the question of liability.

Appellant contends that this charge was in error and necessitates the grant of a new trial.

We observe that this challenged instruction was taken from a bracketed portion of the Pennsylvania Suggested Standard Jury Instruction (Civil) § 14.02, Subcommittee Draft (September 26, 1976), relating to the assessment of punitive damages and was given by the trial court in reliance on this Court’s decision in Rhoads v. Heberling, 306 Pa.Super. 35, 451 A.2d 1378 (1982). In Rhoads, the trial court instructed the jury that the amount of punitive damages awarded need not bear any relationship to the actual damages rendered. The panel, in holding that this instruction was proper, opined that such a charge was consistent with the Restatement (Second) of Torts § 908, Comment C (it is not essential to the recovery of punitive damages that the plaintiff should have suffered any pecuniary or physical harm) which, in the panel’s view, was adopted by this Court in Focht v. Rabada, 217 Pa.Super. 35, 268 A.2d 157 (1970). Actually, Focht cited Chambers v. Montgomery, 411 Pa.Super. 339, 192 A.2d 355 (1963) as adopting the Restatement view. Neither case, however, even remotely considered that portion of Section 908 regarding the compensatory-punitive relationship; only an interpretation of the word “punitive” was involved. The panel in Heberling also relied on the model charge prepared by the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions. See also Laniecki v. Polish Army Veterans Association, 331 Pa.Super. 413, 480 A.2d 1101 (1984) (sets forth the rule adopted in Rhoads). In no case, though, has the Supreme Court approved or accepted its own committee’s proposed instruction. As a matter of fact, the draftsmen of this model charge admit that it “departs ... from what may be considered as the existing Pennsylvania law on punitive damages.” Pennsylvania Suggested Standard Jury Instruction (Civil) § 14.02, Subcommittee Note at 3, 7-8.

Indeed, several earlier Supreme Court decisions held that the amount of punitive damages must bear a reasonable relationship to the award of compensatory damages. See Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944); Givens v. W.J. Gilmore Drug Co., 337 Pa. 278, 10 A.2d 12 (1940); Thompson v. Swank, 317 Pa. 158, 176 A. 211 (1934); and Mitchell v. Randal, 288 Pa. 518, 137 A. 171 (1927). These Supreme Court decisions were cited as authority and followed by our Court in Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983), and Feld v. Merriam, 314 Pa.Super. 414, 461 A.2d 225 (1983), reversed on other grounds, 506 Pa. 383, 485 A.2d 742 (1984). They were also discussed in the case of Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983). To date, none of these cases has been overruled by the Supreme Court. Rather, their viability has recently been confirmed by a plurality decision of our Commonwealth’s highest court in Martin v. Johns-Manville Corporation, 508 Pa. 154, 494 A.2d 1088 (1985). In Martin, Justice Hutchinson, joined by Justice Flaherty, reiterated that punitive damages must bear a reasonable relationship to actual compensatory damages. Justice McDermott, who filed a concurring opinion, did not take issue with Justice Hutchinson’s statement of the law concerning the relationship between punitive and compensatory damages. Justice Papadakos joined Justice McDermott while Chief Justice Nix and Justice Zappala concurred in the result and Justice Larsen did not participate.

This is not to suggest that the reasonable relationship test is immune from valid criticism, which is particularly sharp in the defamation context. Detractors see a glaring flaw in the test’s patent reliance upon the compensatory award as a reliable indicator of the extent of the wrongdoing. Essentially, it is urged that a plaintiff’s failure to recoup a high compensatory award does not necessarily mean that defendant’s wrongdoing was not so egregious as to warrant a high punitive award. F. Warren Jacoby, The Relationship of Punitive Damages and Compensatory Damages in Tort Actions, 75 Dick.L.Rev. 585, 607 (1970-1971) contains this lament:

A test or ratio [which compares the punitive and compensatory figures awarded] must rely on a presumption that the amount of actionable, provable injury is in direct correlation with the degree of malicious or wanton behavior exhibited by the defendant. While that presumption may be valid in certain situations, it has no place in areas of the law such as defamation. A defendant may entertain the most malicious thoughts and intentions while defaming the plaintiff, yet, if the plaintiff has a sound reputation, there is a great possibility that he will suffer little or no observable injury.

See generally Prosser and Keaton on the Law of Torts at pp. 14-15 (5th ed. 1984).

Even in the defamation context, however, we are of the view that the drawbacks inherent in the rigidity in its application are outweighed by the benefit reaped: stability. By insisting upon a reasonable relationship between compensatory and punitive damages, there remains intact an analysis of the ratio between the amounts awarded. True, this method of numbers comparison must itself be loosely applied to account for the variables in each case. Nonetheless, it succeeds in keeping awards within shouting distance of each other from one case to the next. Jurors are thereby precluded from awarding punitive damages on the basis of passion, prejudice, or improper motives.

It has been suggested that even the most carefully considered test for appellate review of jury awards may nonetheless allow for a mere substitution of the court’s judgment for that of the factfinders. Punitive Damages L & Prac. § 5.39. Realistically, then, we are at a loss as to how a tangible figure can be assigned to punitive damages when the defendant’s wrongdoing is considered separate and apart from the compensatory award. Deprived of any anchoring force, each case is set adrift on its own, thoroughly void of context. If it is the conclusion of a jury that X wrongdoing equals Y punitive dollars, upon what basis are we to meaningfully review that conclusion on appeal? To abandon the test and examine the wrongdoing in isolation would be to place the harm in a hot air balloon and cast the sandbags overboard. The sky would be the limit, and as an appellate court we would be left clutching thin air, possessing nothing of substance against which to scrutinize punitive awards.

We will therefore continue to follow the lead of the Supreme Court in holding that an award of punitive damages must bear a reasonable relationship to the amount awarded as compensatory damages. A test such as this, which provides that the punishment to a defendant and its deterrent effect on society be related to the nature and extent of the plaintiffs injuries, enables the court to temper the amount of punitive damages awarded yet insure that justice is served. To the extent that the yet-to-be-adopted Standard Jury Instructions impute a contrary intention to the Supreme Court, it is our fervent hope that the Court will take the model charge by the horns and either embrace it or cast it aside.

It is clear under the present state of the law that the trial court erred in its charge on punitive damages and that such error was prejudicial to appellant necessitating a new trial. However, since the issue of liability was fully and fairly tried, we limit the new trial solely to the issue of damages. Reversed and remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

McEWEN, J., files a concurring and dissenting opinion. OLSZEWSKI, J., files a dissenting opinion, joined by DEL SOLE, J. DEL SOLE, J., files a dissenting opinion.

1 . Because of our disposition of this issue, we need not reach the merits of appellant’s challenges to the excessiveness of punitive damages and to the award of compensatory damages for the regrading of the embankment on the Kirkbrides’ properly.