The Commonwealth Court Declares The Fair Share Act Unconstitutional, But The Battle Continues

August 2005

BY: EDWARD M. KOCH

On July 26, 2005, the Pennsylvania Commonwealth Court declared the Fair Share Act unconstitutional due to the procedure in which it was passed by the General Assembly in 2002. In DeWeese v. Weaver, 2005 WL 1719711 (Pa. Commw. July 26, 2005), the court held that the passage of the Act violated the single-subject rule contained in Article III, Section 3 of the Pennsylvania Constitution because it was coupled with a DNA bill. However, the Commonwealth Court’s decision will not be the last word on the viability of the Act.

History of the Fair Share Act

“Joint tortfeasors” are two or more persons who either act together in committing a wrong or whose independent acts unite in causing a single injury. Under prior law in Pennsylvania, such joint tortfeasors were “jointly and severally liable” to an injured party; that is, each tortfeasor was liable for the full amount of the judgment, regardless of degrees of fault. For example, if there are two joint tortfeasors, one which is adjusted 1% liable and the other 99% liable, either party – including the one adjudged only 1% liable – would be liable to pay the full amount of the judgment. However, a joint tortfeasor who paid more than his proportionate share of liability would have a right of contribution against a defendant failing to pay his proportionate share. While this scheme of joint and several liability provided a security blanket for plaintiffs by helping to guarantee payment of the judgment, it often created inequitable results and procedural wrangling among defendants to enforce contribution rights.

The Fair Share Act changed all that. When then-Pennsylvania Governor Mark Schweiker signed into law the Fair Share Act of June 19, 2002, he extolled it as “the most dramatic change in the Pennsylvania civil-justice system in decades.” Under the Fair Share Act, individual defendants are liable to pay only their proportionate share of the judgment instead of the full judgment, with few exceptions. The exceptions include intentional torts, intentional misrepresentation, hazardous substance releases (under the Hazardous Sites Cleanup Act), or “dramshop” liability of tavern owners. The most notable exception, however, relates to a defendant held liable for 60% or more of the total apportioned liability to all parties. If a defendant is held liable for 60% or more of total apportioned liability, that defendant remains liable to pay the full amount of the judgment.

The Immediate Constitutional Challenge to the Act

Soon after the Fair Share Act became law, the General Assembly’s minority leader, William DeWeese, mounted a constitutional challenge to the Act in the Commonwealth Court under its original jurisdiction. DeWeese contended that the procedure in which the Act was passed violated various provisions of Pennsylvania’s Constitution, including the single-subject requirement of Article III, Section 3. Through an initial round of preliminary objections, the Commonwealth moved to dismiss the case. The Commonwealth Court sustained all preliminary objections except the single-subject challenge.

Through later cross-motions for summary judgment on the single-subject challenge, the court ruled that the law was unconstitutional because the Act’s two provisions – DNA sampling and reforms to joint and several liability – did not “bear a proper relation” to a single subject. Id. at *5-*6.

On August 1, 2005, the Commonwealth took an appeal to the Pennsylvania Supreme Court. Under the Rules of Appellate Procedure, the Commonwealth’s appeal acts as an automatic stay of the court’s decision. The Fair Share Act therefore remains a viable law, at least for the time being.

The Hicks Case

While the DeWeese case was languishing in the Commonwealth Court, Judge James Murray Lynn of the Philadelphia Court of Common Pleas ruled that the Fair Share Act was unconstitutional in Hicks v. Dana Corp., Phila. C.C.P. December Term 2002, No. 3509. After the denial of post-trial motions, the Hicks defendants took a direct appeal to the Pennsylvania Supreme Court under Title 42, Section 722 of the Pennsylvania Statutes. This provision confers immediate appellate jurisdiction upon the Pennsylvania Supreme Court of lower court orders that declare legislation unconstitutional.

Due to the delays associated with DeWeese in the Commonwealth Court, Hicks proceeded to briefing in the Supreme Court first. Hicks and DeWeese will likely be consolidated by the Court for disposition.

Efforts in the General Assembly to Save the Act

In light of the challenges mounted to the Fair Share Act in the court, efforts are underway in the General Assembly to re-pass the same Fair Share Act with an expected vote in the fall. Due to the everchanging political climate, however, it is unclear whether the Act will be re-passed in the same form.

Conclusion

The Fair Share Act is currently under consideration by two branches of state government. The Pennsylvania Supreme Court is considering the constitutionality of the Act through the challenges mounted in DeWeese and Hicks. At the same time, the General Assembly will attempt to re-pass the bill to address perceived procedural problems that accompanied the Act’s first passage. This issue will be resolved someway – judicially or politically – in the upcoming months. In the meantime, it is important to remember that the Commonwealth’s appeal in DeWeese acts as automatic stay of the Commonwealth Court’s decision. As a result, the Fair Share Act is still good law unless or until declared unconstitutional by the Pennsylvania Supreme Court. Even if declared unconstitutional by the Supreme Court, the General Assembly may provide a legislative fix. Stay tuned.