The Pennsylvania Supreme Court Declares The Fair Share Act Unconstitutional

October 2006

BY: EDWARD M. KOCH

With a pronouncement that contained just eight words – “The Order of the Commonwealth Court is affirmed” – the Pennsylvania Supreme Court ruled that the Fair Share Act is unconstitutional. DeWeese v. Cortes, 2006 WL 2786943 (Pa. Sep. 28, 2006). The decision ends the three-year court battle between the Pennsylvania General Assembly’s minority and majority leaders over the procedural manner in which the Act was passed. With this decision, Pennsylvania returns to a pure joint-and-several-liability scheme, at least for now.

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, 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 of which is adjudged 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, particularly where a defendant did not have sufficient assets or insurance coverage to pay his proportionate share, leaving the other defendant “holding the bag.”

The Fair Share Act changed all that. When then-Pennsylvania Governor Mark Schweiker signed into law the Fair Share Act on 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 were liable to pay only their proportionate share of the judgment instead of the full judgment, with few exceptions. The most notable exception related to a defendant held liable for 60% or more of the total apportioned liability to all parties. If a defendant was held liable for 60% or more of total apportioned liability, that defendant remained 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 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. DeWeese v. Weaver, 880 A.2d 54, 60 (Pa. Commw. 2005).

The case was subsequently appealed to the Pennsylvania Supreme Court, where it remained for over a year. The Court affirmed the decision of the Commonwealth Court in a simple, one-line order without further explanation. DeWeese, 2006 WL 2786943.

Efforts In The General Assembly To Re-Pass The Act

The Pennsylvania Supreme Court’s decision comes in the wake of failed legislative efforts to re-pass the Fair Share Act in a manner which more clearly passes state-constitutional muster. Fearing that the Pennsylvania Supreme Court would ultimately declare the Fair Share Act unconstitutional, the Pennsylvania General Assembly passed a new Fair Share Act that was not coupled with other legislation. Known as Senate Bill 435, the bill received a clear majority from the General Assembly – passing the state Senate on December 6, 2005, by 32-18, and the House of Representatives on March 14, 2006, by a vote of 118-81. On March 24 of this year, Governor Rendell vetoed Senate Bill 435. The issue is not dead, however, as it appears that legislators will again attempt to reform joint and several liability after the November elections.

With The Demise Of The Fair Share Act, Pennsylvania Returns To The Minority View Of Joint And Several Liability

With the political and judicial demise of the Fair Share Act, Pennsylvania returns to a pure joint-and-several-liability scheme. According to research performed in late 2005 that accompanied an amicus curiae brief submitted by White and Williams in DeWeese on behalf of the Pennsylvania Defense Institute, this places Pennsylvania in a small minority of nine states nationwide that adhere to such an outmoded scheme. See National Joint And Several Liability Survey (PDF). The remaining 41 states have either completely abandoned joint and several liability in favor of modified joint and several liability (28 states) or pure several liability (13 states).

Conclusion

Although Pennsylvania’s Fair Share Act was defeated, the battle to reform joint and several liability in Pennsylvania will undoubtedly continue in the upcoming months in the General Assembly.

About the Author: Edward M. Koch (215-864-6319, koche@whiteandwilliams.com) is an associate in the Appellate Practice Group at White and Williams LLP. He submitted an amicus curiae brief on behalf of the Pennsylvania Defense Institute in DeWeese along with White and Williams associates Mary Dixon and Chris Ballod.