Kristen L. Worley

Key Points:

• Pennsylvania’s Fair Share Act permits the inclusion of a defendant or other non-party who has entered into a release with a plaintiff to be included on the verdict sheet and, thus, subject to apportionment of liability “… upon appropriate requests and proofs by any party.” 
• Employers who are granted immunity from liability and suit under Pennsylvania’s Workers’ Compensation Act are not subject to inclusion on a verdict sheet. 
• Trial of any case necessarily comes at the conclusion of months, and, in many instances, years, of discovery. Practitioners carefully weigh their strategy when propounding and answering written discovery, asserting objections during depositions, and serving expert reports. During this phase, it is easy to push the notion of trial and all of its practical considerations to the side, acknowledging the oft-cited statistic that only 1% of cases will reach the trial stage. Nevertheless, when those few cases we encounter in our practice reach the trial stage, we find ourselves preparing in earnest for testimony, crafting arguments for the admission or exclusion of evidence, as the case may be, and finally, preparing a litany of pretrial submissions. It is this latter subset of considerations, and specifically the verdict sheet, that are ultimately submitted to a jury which is the focus herein.

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A jury verdict sheet is the sum of every case expressed in its simplest form and, quite arguably, the most important document in any trial. The verdict sheet outlines for a jury the decisions that must be rendered once all the evidence has been placed before it. The form can take any number of versions, but in the traditional case, it directs a jury to determine liability, causation, and damages. But who goes on the verdict sheet? We expect that parties to a lawsuit will be placed on a verdict sheet, but what about settled defendants and non-parties? A defendant has a significant interest in providing a jury with the opportunity to apportion fault to as many entities as possible, thereby reducing its overall exposure. 

Pennsylvania’s Fair Share Act, 42 Pa.C.S. § 7102, directs practitioners as to those instances in which settled defendants and non-parties may be included on a verdict sheet for purposes of apportionment of liability. 42 Pa.C.S. § 7102(a)(2) provides as follows:

Apportionment of responsibility among certain nonparties and effect.--For purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party. A person whose liability may be determined pursuant to this section does not include an employer to the extent that the employer is granted immunity from liability or suit pursuant to the act of June 2, 1915 (P.L.736, No.338), known as the Workers’ Compensation Act. 

Note the key phrase in the foregoing citation, “…any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party.” (Emphasis added.) Significantly, Pennsylvania courts have determined that there is no absolute right to the inclusion of a settled defendant on a verdict sheet. Hyrcza v. West Penn Allegheny Health System, Inc,. 978 A.2d 961, 969-970 (Pa. Super. 2009). Rather, a jury must be presented with proofs sufficient to find the settled defendant or other person liable, and the trial court functions as the gate keeper to determine whether that evidential burden has been satisfied.

Ultimately, a trial court’s determination of whether sufficient evidence has been adduced that supports a prima facie case against a settled defendant and, thus, its inclusion on a verdict sheet is a decision that is subject to review for an abuse of discretion or error of law. See Rose v. Annabi, 934 A.2d 743, 745 (Pa. Super. 2007). An abuse of discretion occurs when the decision of the trial court represents “not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias, or ill will.” Id. In discussing this standard of review, practitioners must take note that the decision of the trial court concerning the inclusion of a settled defendant or other person on a verdict sheet will be, for better or worse, a difficult ruling to challenge on appeal, and one should prepare their trial proofs accordingly. 

In converse to settled defendants that may be placed on a verdict sheet following the submission of sufficient evidence of fault, employers who are granted immunity under the Pennsylvania’s Workers’ Compensation Act are not subject to inclusion on a verdict sheet. The exclusivity provision of the Pennsylvania Workers’ Compensation Act, set forth at 77 P.S. § 481, provides that the “liability of an employer under this Act shall be exclusive and in place of any and all other liability to such employees … entitled to damages in any action at law or otherwise on account of any injury or death … .” Acknowledging the Act’s limitation of suit, or exclusivity provision, the Pennsylvania Fair Share Act similarly bars the apportionment of any liability to an employer immunized from liability or suit under the Act.

In sum, practitioners should not presume that defendants or non-parties who have entered into a release with the plaintiff will automatically be included on the verdict sheet. Rather, they should prepare their cases for trial with special attention paid to expert discovery and advance theories of liability against a settled entity. In this manner, practitioners can ensure that they are capable of presenting sufficient proofs from which the trial court can conclude that a prima facie case of liability has been advanced against a settled entity and, thereby, order the inclusion of said entity on the verdict sheet for purposes of liability apportionment. 

*Kristen, a shareholder in our Philadelphia, Pennsylvania, office, is Co-Chair of our firm’s Catastrophic Claims Litigation Practice Group. She can be reached at 215.575.2849 or KLWorley@mdwcg.com.

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_{Defense Digest, Vol. 29, No. 4, December 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}