explaining “[b]ecause the right implicated . . . —access to the courts—is specifically limited by Art. I, § 11 of the Pennsylvania Constitution, we concluded that it is not a fundamental right”
How later courts described this case
- explaining “[b]ecause the right implicated . . . —access to the courts—is specifically limited by Art. I, § 11 of the Pennsylvania Constitution, we concluded that it is not a fundamental right”
- Noting that the “important interest in access to the courts . . . should be examined pursuant to an intermediate standard of review.”
- “the legislature has complete control in that it could abolish altogether the right to recover against the Commonwealth in tort actions.”
- Section 18 does not undermine General Assembly’s authority under Section 11 to limit amount of recovery in tort actions against “governmental entities,” or abolish those actions completely
Written by the judges who cited it.
The opinion
NIX, Chief Justice,
concurring.
I join the opinion of the majority. I do, however, wish to note that I appreciate the concern of the concurring justices. Mr. Justice Flaherty is unquestionably correct in concluding that the right of access represents a fundamental right and that its denial should require the application of the “heightened scrutiny” standard of review. Whether every limitation upon that right is to be accorded the same status as an absolute denial of access or where to draw the line pose much more difficult questions. In this matter, the question fortunately is academic because, under either standard, the result is the same.
Suffice it to say that, in my judgment, not all legislative restrictions which impact upon access to the courts will require the “heightened scrutiny” analysis. See, e.g., Kras *141 v. United States, 409 U.S. 434 , 93 S.Ct. 631 , 34 L.Ed.2d 626 (1973). Moreover, I do not understand the majority to disagree with this view.