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Limitations on the recovery of damages contained in Pennsylvania’s local governmental immunity statute, but absent from the state’s sovereign-immunity law, violate a plaintiff’s constitutional guarantee of equal protection, an attorney for an injured Lehigh County, Pa., woman argued before the state Supreme Court in Philadelphia Tuesday. Counsel for the defendants, including a transit agency in Lehigh County, countered that a legitimate governmental interest underlies local immunity, as it is intended to protect municipalities with limited financial resources from excessive jury verdicts. Arguments in Gloffke v. Robinson represent the first time a case has put the state’s two immunity laws side-by-side in a constitutional challenge before the state Supreme Court. At issue is a disparate classification of damage claims under the local governmental immunity statute, known as the Political Subdivision Tort Claims Act, and the state’s Sovereign Immunity Act. The Tort Claims Act restricts a plaintiff’s ability to recover damages for pain and suffering from a local governmental agency to cases of death, disfigurement or permanent loss of bodily function. The Sovereign Immunity Act provides a looser standard for recovery of pain and suffering damages. Consequently, a motorist involved in an accident with a Southeastern Pennsylvania Transit Authority bus may seek pain and suffering damages from the transit agency, deemed a commonwealth entity, while a similarly situated motorist may not recover against the Lehigh and Northampton Transportation Authority (LANTA), because it is considered a local governmental agency. This was the gist of Richard J. Orloski’s argument. Arguing on behalf of appellant Wendy Gloffke — who was injured after a LANTA bus rear-ended her vehicle in Allentown on Dec. 26, 1998 — Orloski urged the justices to sever the provision in Section 8553 of Pennsylvania’s consolidated statutes, which establishes the threshold for seeking damages against a local governmental agency. “Once the Legislature determines the waiver of immunity for vehicle accidents, they cannot come back and put a limitation on damages in cases without a permanent loss of bodily function,” said Orloski, an attorney with Orloski Hinga Pandaleon & Orloski in Allentown. At trial in October 2001, a Lehigh County jury determined that LANTA was negligent and that its negligence played a substantial factor in causing Gloffke’s injuries. But the jury was forced to return a zero-damages verdict because the plaintiff failed to establish that she suffered a “permanent loss of bodily function.” Orloski said that the Legislature’s creation of different standards for recovering damages in cases involving sovereign immunity and governmental immunity poses an equal-protection issue. Acknowledging that the purpose of governmental immunity is to conserve the limited resources of a municipality, Orloski nonetheless told the justices that conservation of revenue is not a constitutional standard. “If saving money is the name of the game, you can do it constitutionally,” he said, “but you can’t do it in a way that deprives [the plaintiff] of access to the courts.” Richard L. Orwig of the Law Offices of Richard L. Orwig in Reading represented LANTA and Melvin Robinson, the bus driver involved in the accident. He asserted that the governmental-immunity statute does not violate the equal-protection clause because the statute treats every person similarly situated in the same way. Moreover, Orwig argued, a plaintiff in a personal-injury case is not a member of a protected class, nor does a plaintiff have a fundamental right to recover damages from a local agency. Orwig urged the court to adopt a rational-basis test to review the classifications contained in Section 8553, relating to limitations on damages under local governmental immunity, and Section 8528, stipulating damage limitations under sovereign immunity. He argued that both statutory provisions serve legitimate governmental functions. Specifically, Section 8553 is intended to protect the public treasury of local agencies and ensure stability in municipal services, Orwig said. Justice Russell M. Nigro asked Orwig if a plaintiff pursuing a lawsuit against both a local and commonwealth agency under an exception to immunity would be able to recover from the commonwealth and not from the local agency — a scenario that leaves the commonwealth footing the bill. In response, Orwig said that the underlying policy of governmental immunity was not rooted in a consideration of the commonwealth’s revenue base, but rather it bears in mind the limited revenue resources available to local governments. While Gloffke’s case also raised the constitutional issue of due process, Chief Justice Ralph J. Cappy requested that the attorneys limit their arguments to the equal-protection question. In an interview after arguments, Orwig said this case could have an impact on every local agency in the state, from the smallest burg in central Pennsylvania to the city of Philadelphia. Orwig also said that Gloffke’s due process claims were without merit, given the extensive history of this case, which included an arbitration hearing, pretrial proceedings, a jury trial, post-trial proceedings, review before the Commonwealth Court and now state Supreme Court review. “To say she didn’t have due process would be inaccurate,” Orwig said. Orloski was not available for a post-argument interview. In addition to Orwig, Jill Elaine Nagy of O’Pake & Orwig in Reading and Stephen J. Alexander of Frey Petrakis Deeb Blum Briggs & Mitts in Philadelphia also represented LANTA and Robinson.

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