POLITICAL SUBDIVISION TORT CLAIMS ACT-DAMAGES-PROPERTY

Young v. City of Scranton, 2023 Pa. Commw. LEXIS 31 (March 28, 2023) (Dumas, J.) The City of Scranton (the City) appeals from the judgment entered December 2, 2021, in the Court of Common Pleas of Lackawanna County (trial court), in favor of Albert and Elaine Young and Christopher and Michele Kennedy (Appellees). The City disputes the jury’s monetary award to Appellees for “past, present and future loss of enjoyment of their property” as well as “annoyance and inconvenience.” After careful review, we conclude that such derivative damages are not permitted. We therefore vacate the judgment entered, as well as the trial court’s order denying the City post-trial relief, and remand for the trial court to consider the issue of damages in accordance with this opinion. The jury awarded the Youngs $230,000.00 in damages, including $150,000.00 for “past, present and future loss of enjoyment of their property” as well as “annoyance and inconvenience.” The Kennedys were awarded a total of $103,500.00 in damages, including $93,500.00 for loss of enjoyment. According to the City, those damages apportioned for “past, present, and future loss of enjoyment of their property, annoyance, and inconvenience” are precluded as a matter of law. Appellant’s Br. at 12 (citing 42 Pa. C.S. § 8553) (emphasis added). Rather, the City contends, Section 8553 specifically limits recovery to “property losses.” Id. (citing 42 Pa. C.S. § 8553(c)(6)). The City argues that the Judicial Code does not expressly allow for derivative losses, or what it characterizes as damages to the person, such as loss of enjoyment of property, annoyance, and inconvenience. Id. at 13, 18. Because neither the Judicial Code itself nor appellate case law has defined “property losses,” the City suggests that we utilize statutory interpretation and look at the purpose and legislative intent of the Judicial Code. Id. at 13, 17, 20. There, the City contends that the purpose generally is to insulate governmental entities from liability and to expressly limit the types of damages for which a governmental entity can be liable. Id. at 13 (citing Smith v. City of Philadelphia, 512 Pa. 129, 516 A.2d 306, 311 (Pa. 1986) (plurality opinion)). To this point, the City further suggests that it is in the public interest to protect the public treasury from excessive verdicts. Id. The Judicial Code limits the liability of local agencies “for any damages on account of any injury to a . . . property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa. C.S. § 8541. There are exceptions to this governmental immunity, including damages to property caused by utility service facilities. See 42 Pa. C.S. § 8542(b)(5). Nevertheless, even where liability has been permitted, the Judicial Code limits the type of losses recognized for which damages may be recovered. Relevant here, the Judicial Code permits the recovery of damages for “property losses.” 42 Pa. C.S. § 8553(c)(6). The Judicial Code does not define “property losses.” For these reasons, because the trial court erred by determining that the Judicial Code allowed for the recovery of “loss of enjoyment” damages for property loss, we vacate the judgment entered, as well as the trial court’s order denying post-trial relief, and remand for the trial court to consider whether a new trial on damages is necessary, or whether the properly awarded damages in the first trial were fairly determined, and if so, “whether they are independent from, and are not ‘intertwined’ with, the erroneously determined damages.” See, e.g., Mader, 241 A.3d at 614-15.