10-Year Anniversary of Pa.’s Fair Share Act Marred by Continued Attacks

Reprinted with permission from The Legal Intelligencer

August 12, 2021
By Curt Schroder

Just over 10 years ago, the landmark Pennsylvania Fair Share Act (42 Pa.C.S. Section 7102) was signed into law. The act abolished joint and several liability in most negligence and strict liability cases. The statute accomplished that objective by clearly and unambiguously stating that, apart from a limited class of excepted cases, “a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.” As a member of the House at the time who led the debate on the floor in support of the Fair Share Act, I was proud to stand with Gov. Tom Corbett as he signed the bill in the rotunda of the state capitol.

Replacing the unfair concept of joint and several liability, where a defendant could be required to pay 100% of a verdict even if only minimally liable, was a long and arduous task. Two previous versions met their demise. One was struck down by the Pennsylvania Supreme Court for reasons unrelated to the substance of the bill, while Gov. Ed Rendell vetoed the second effort. Finally, on June 28, 2011, Pennsylvania’s archaic joint and several liability law was replaced by a fair law requiring each defendant to pay according to the percentage of liability assigned by the jury and nothing more, unless one defendant is sixty percent or more at fault. In doing so, Pennsylvania joined 42 other states in repealing or altering common law joint and several liability. Fairness was finally restored across the commonwealth.

Recently, however, Pennsylvania appellate courts have condoned efforts to dismantle the groundbreaking legislation piece by piece. The first came on Feb. 19, 2020, when the Pennsylvania Supreme Court issued its decision in Roverano v. John Crane, 226 A.3d 526 (Pa. 2020). Over a well-reasoned concurring and dissenting opinion from Justice Thomas G. Saylor, the majority held that the Fair Share Act requires liability to be apportioned equally among strictly liable joint tortfeasors (i.e., on a per capita basis). In reaching that conclusion, the majority ignored the plain language of the act. The act expressly states that it applies to tort cases where “recovery is allowed against more than one person, including actions for strict liability.” Despite this clear and unambiguous language, the majority determined: “It is an unwarranted leap to conclude that the legislature intended to apportion the relative liability of defendants in strict liability cases in the same manner specifically described for negligence cases.” Yet that is exactly what the legislature intended to do and clearly said so.

The second misreading of the Fair Share Act came in mid-March, when a two-judge panel of the Pennsylvania Superior Court issued its decision in Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021). Spencer involved a pedestrian that was struck by a drunk driver operating his wife’s company car. The panel held that the trial court erred in failing to grant the plaintiff-pedestrian’s motion to mold the verdict pursuant to the Fair Share Act, because the jury’s general verdict warranted a finding that the defendant-employer was vicariously liable for the defendant-employee’s negligence and their combined liability exceeded 60%. The panel’s analysis did not end there, however. Despite the fact the issue was never raised by the parties, Judges Jack Panella and Daniel McCaffery sua sponte concluded that, assuming, arguendo, that the verdict did not demonstrate that the defendant-employer was vicariously liable, the trial court still erred in applying the act, because the plaintiff-pedestrian was never alleged or found to have contributed to the accident. They added that, “for the Fair Share Act to apply, the plaintiff’s negligence must be an issue in the case.” In other words, according to the two-judge panel, the Act only applies to instances of comparative negligence.

Panella and McCaffery tried to justify their attempt to partially repeal the Act by claiming that, in enacting the Fair Share Act, “there is no indication the legislature intended to make universal changes to the concept of joint and several liability outside of cases where a plaintiff has been found to be contributorily negligent.” The panel’s novel reading of the Act, however, cannot be reconciled with the statute’s legislative history—which is notably absent from the opinion.
The members of the House and Senate debated the legislation over the course of four days. While the proponents and opponents of the legislation disagreed on its merits, they all agreed on one thing—that the act abolished joint and several liability except for five classes of cases.

Fair Share Act opponent Representative Mike Hannah stated during floor debate: “this bill that we are looking at today does away with joint and several liability except for those five enumerated exceptions that we talked about in Section (3).” Representative Hanna also remarked: “This bill repeals joint and several liability, which is a legal concept that has been in place in Pennsylvania for more than 200 years.” Sen. Stewart Greenleaf, another opponent of the legislation, remarked during debate in the Senate: “If you look at the bill itself, and all of the bills, what they do is repeal joint and several liability and then provide certain exceptions … .” Greenleaf also stated: “This amendment and the original bill go too far, because it, in effect, has a de facto repeal of joint and several liability.” Other examples include Sen. Costa (opponent): “What this amendment would do is essentially eliminate the doctrine of joint and several liability. ” And Rep. Harper (opponent): “By abolishing joint liability and joint responsibility, we also abolish the incentives for a joint defense and joint payment of damages.”

Numerous proponents of the Fair Share At, including myself, also agreed with opponents that the legislature was doing away with the unfair concept of joint and several liability. In other words, there was no debate on this point. Proponents and opponents knew that the Comparative Negligence Act, including joint and several liability, was being eliminated. Presumably, this is because every member of the House and Senate read the phrase “including actions for strict liability” to mean that the act applied to all multi-defendant actions—which is consistent with the plain terms of the statute. Regardless, the legislative history flatly refutes Panella and McCaffery’s unsupported contention that the General Assembly intended to limit the Fair Share Act to only a subset of negligence cases.

The Superior Court denied petitions for re-argument in Spencer, and the defendants elected against seeking further review from the Pennsylvania Supreme Court. However, the two-judge panel’s alternative reasoning clearly qualifies as dicta (since it was not central to the court’s disposition of the case), which should deter lower courts and future appellate court panels from sanctioning a partial judicial repeal of the act. Still, Spencer—while clearly an outlier—is a reminder that Pennsylvanians must remain vigilant in ensuring that appellate court judges do not undo the tremendous gains that we all have experienced by restoring fairness into the law.

Link to original article: https://www.law.com/thelegalintelligencer/2021/08/12/10-year-anniversary-of-pa-s-fair-share-act-marred-by-continued-attacks/

Curt Schroder is the executive director of Pennsylvania Coalition for Civil Justice Reform, which is a statewide, bipartisan organization representing businesses, health care and other perspectives. He previously served for 17 years in the Pennsylvania House of Representatives. Contact him at curt@pccjr.org.

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