Defense Digest

Not Fair! Pennsylvania's "Fair Share Act" Found Unconstitutional

On June 19, 2002, the Pennsylvania Assembly passed, and then-Governor Mark S. Schweiker signed, Act 57. The Act had a somewhat tortured legislative history but was originally proposed on October 9, 2001 as an act amending Pennsylvania’s DNA Detection of Sexual and Violent Offenders Act. The Act bounced between the Pennsylvania House and Senate as various amendments to the Act had to be agreed to by each house.

During this process, the Act was amended to include a section on "the apportionment of liability and damages," also known as "the Fair Share Act." The Fair Share Act sought to alter the then-current state of the law, whereby plaintiffs could seek to collect the full amount of a judgment from any defendant who was adjudicated to be liable, even if that party only bore a small percentages of total liability. The net effect was that often peripheral defendants with insurance were forced to absorb the liability of defendants who had neither insurance coverage nor assets. The Fair Share Act, albeit with limitations set out in the Act, made certain defendants responsible for only that portion of the verdict which was attributed to them.

Complicating the case is the fact that the Pennsylvania Constitution, at Article 3, Section 3, contains the following limitation on legislative activity: "No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling a law or a part thereof." Pa. Const. art. III, § 3. This so-called "single subject" requirement has been held to require that each subject in an Act must be "germane" or bear a "proper legislative relation" to the other subjects of the act.

A suit was filed in the Commonwealth Court, under its original jurisdiction over challenges to the constitutionality of Acts, by H. William DeWeese, the House Minority Leader and Member of the House Rules Committee, and Mike Veon, Democratic Party Whip in the House. They sought to have Act 57 declared unconstitutional on several grounds, including that it violated the "single subject" requirements.

Preliminary objections were filed by the Honorable C. Michael Weaver, then-Secretary of the Commonwealth of Pennsylvania and named defendant, asserting that the complaint failed to state a cause of action. The Commonwealth Court disposed of those preliminary objections. The Secretary argued that the Act can been viewed as both being about the "business of the court" or about "judicial procedure," thus conforming to the "single subject" requirement.

The Court rejected that argument, holding that any two subjects can be considered within the same subject "if the point of view can be carried back far enough." Instead, the Supreme Court has required that the subjects of a Bill relate to "one single overarching subject" in order to meet constitutional muster. This standard was not met here, in the Commonwealth Court’s estimation, because requiring DNA samples from felons bore no "proper relation" to joint and several liability in civil negligence actions.

After the preliminary objections were disposed of, the plaintiffs moved for summary judgment. On July 26, 2005, the Commonwealth Court declared Act 57 to be unconstitutional and invalid. Accordingly, absent any law to the contrary or a reversal, Pennsylvania law now reverts to "joint and several liability" among multiple tortfeasors.

We may not have heard the last of this issue. The Attorney General has filed an appeal in this case. The Supreme Court has granted supersedeas, which means that the law will remain in effect through the Court’s consideration of this issue. However, it is very likely that the Pennsylvania Supreme Court will affirm the Commonwealth Court's decision.

As a practical matter, the Act can and should be invoked in pending cases where it applies in the remote chance that the Supreme Court reverses the Commonwealth Court. However, it would be wise for insurance carriers and practitioners to have a backup litigation plan which assumes that joint and several liability will once again become the law of the land but, at the same time, preserves the issue of the defendant only paying his adjudicated share when appropriate, so as to take advantage of any positive ruling by the Supreme Court.

The General Assembly is also believed to be planning a replacement or corrective statute. However, it is likely that any legislative response will not apply to pending cases or be retroactive and will only apply to cases brought after the date of the enactment of the statute.

Given the uncertainty of the appellate and political processes involved, it is impossible to say whether we have seen the last of "Fair Share" in Pennsylvania.

Stay tuned!

*Walt, an associate in our Cherry Hill, NJ office, can be reached at (856) 414-6024 or wkawalec@mdwcg.com.