I. Opponents to the Window Are Asserting that the “Remedies Clause” of the
Pennsylvania Constitution Makes Window Legislation Unconstitutional.
In Fact, It Is Irrelevant
The purpose of the Remedies Clause is to protect plaintiffs from legislative action that will undermine an individual’s remedy for an injury done. It is a constitutional guarantee for plaintiffs and not defendants. It states, “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. 1 § 11.
With the window, the legislature is simply trying to protect a plaintiff’s ability to proceed in court in pursuit of a remedy for the injury already done. There is no argument that it harms a plaintiff. All Pennsylvania courts agree that the legislative branch cannot dissolve a right to recover once a case accrues. Konidaris v. Portnoff Law Associates, Ltd., 598 Pa. 55, 74, 953 A.2d 1231, 1242 (2008). If, at that moment in a particular case, the law would provide the plaintiff access to a remedy, no subsequent
law can take it away.” See David Schuman, The Right to a Remedy, 65 Temp. L.Rev. 1197, 1208 (1992). In Ieropoli v. AC&S Corp., 577 Pa. 138, 842 A.2d 919 (2004) the Pennsylvania Supreme Court held that the statute limiting successor asbestos-related liabilities for corporations was unconstitutional.
The court analyzed the history of the Remedies Clause in Pennsylvania, and found that the legislation violated the Remedies Clause, because it extinguished the plaintiff’s accrued cause of action to recover for his asbestos-related illness. As properly noted by the Commonwealth Court, we “held that under the Remedies Clause, a cause of action that has accrued is a vested right which cannot be eliminated by subsequent legislation.” Konidaris v. Portnoff Law Associates, Ltd., 598 Pa. 55, 64, 953 A.2d 1231, 1236 (2008).
There is a very old Remedies Clause case that has dictum that might be problematic, essentially saying that a defendant has a vested right in expired claims (not under the Remedies Clause, but probably due process, though the court doesn’t say). It is Lewis v. Pennsylvania R. Co., 220 Pa. 317, 69 A. 821, 823 (1908). There was a time when every court—federal and state–agreed on that principle. But that doctrine is now soundly rejected in federal cases and the majority of states, including Pennsylvania.
Lewis was distinguished by Konidaris v. Portnoff Law Associates, Ltd., 598 Pa. 55, 73-74, 953 A.2d 1231, 1241-42 (2008). In Kondaris, the Supreme Court of Pennsylvania held that a retroactive amendment to Municipal Claims and Tax Liens Act (MCTLA) to provide for recovery of attorney fees expended in collecting tax claims did not violate the Remedies Clause of the Pennsylvania Constitution, as discussed above.
II. The Window Is Constitutional Under Due Process.
A retroactive change to a law violates the Due Process Clauses of both Constitutions only when it is a change to the substance of the law. Procedural changes to a law do not violate due process. A statute of limitations is a procedural issue, not substantive. All it does is change the time to go to court.1
Pennsylvania and a majority of states (and the federal cases) follow the reasoning in McDonald v. Redevelopment Auth. of Allegheny County, 952 A.2d 713 (Pa. Commw. Ct. 2008), which involved statutes of limitations under eminent domain, and held that a retroactive change in the limitations period from five years to one did not violate the plaintiffs’ due process rights. In other words, the shortening of an SOL for a plaintiff was permissible, because it was just a procedural change, not a substantive
change. The same reasoning applies to defendants—alternation of an SOL does not violate due process.
The Pennsylvania Supreme Court has followed this reasoning that procedural changes can be made retroactive in Bible v. Com., Dept. of Labor & Indus., 548 Pa. 247, 696 A.2d 1149 (1997), where a retroactive application to workers’ compensation claims did not violate due process. The amendment did not impair claimants’ right to receive compensation for hearing loss, which would have been substantive, but merely changed the remedy, and retroactive application of the amendment to pending cases was rational. There is no question that it is rational to revive child sex abuse claims given the scientific fact that victims typically need decades to come forward.
The key policy point here is that the Defendants knew full well when they endangered children that they were violating the law. There is no unfair surprise in subjecting them to liability, because when they acted, they were on full notice that they should not have done what they did. The window does no more than impose on them the liability they created through their own actions.
A change in the statute of limitations does not affect the burdens on the parties. The plaintiff still bears
the initial burden of proof, and if he/she has no evidence, the case is over.
View as PDF: View Prof. Hamilton’s PA Remedies Clause (PDF)