Pennsylvania Commonwealth Court declares that the "Fair Share Act", amending the law of joint and several liability in Pennsylvania tort cases, is unconstitutional under the Pennsylvania State Constitution.

(Pennsylvania Supreme Court notes that it has probable jurisdiction over the appeal from that ruling and also over the appeal from a ruling of a Philadelphia trial court, which also declared the Fair Share Act unconstitutional. The Fair Share Act remains in effect, pending a ruling by Pennsylvania Supreme Court.)

Decided: July 26, 2005

Notices of Appeal filed: August 1-2, 2005

Probable Jurisdiction noted by Pa. Supreme Court: August 18, 2005

Hicks v. Dana

Philadelphia Common Pleas

Decided: July 2004

Appeal filed and Probable Jurisdiction noted by Pa. Supreme Court: June 6, 2005

Three years ago, the Pennsylvania Legislature changed the law of joint and several liability by passing the "Fair Share Act", which has been in effect for injuries and damages occurring on or after August 18, 2002. Under the prior law, a joint tortfeasor (one of two or more negligent defendants who jointly caused a single harm) could be found only 1% liable to the plaintiff, but still would be responsible for paying 100% of the verdict. Thereafter, the paying defendant would be left with the prospect of collecting contribution from the other (usually judgment-proof) defendant(s).

Under the Fair Share Act, a joint tortfeasor would not be responsible for the entire verdict unless he or she were found to be at least 60% liable. Any joint tortfeasor found to be less than 60% liable would be responsible only for his or her "fair share". This is an example: Two motorists (Defendants A and B) are sued for causing harm to a passenger in Defendant A's vehicle. The jury finds that A and B are joint tortfeasors; that A is 20% liable and B is 80% liable; and that the passenger's damages are $100,000.00. Under the Fair Share Act, the passenger could collect from A only 20% of the damages, or $20,000.00. On the other hand, B could be made to pay the entire award, and then B would be entitled to seek $20,000.00 in contribution from A.

The Commonwealth Court in DeWeese v. Weaver (and the trial court in Hicks v. Dana) held that the Fair Share Act is unconstitutional under the Pennsylvania Constitution, because the Legislature combined the Fair Share Act with another piece of legislation relating to the DNA fingerprinting of convicted sex offenders. The Court held that this combination of two subjects in a single bill violated Article III, section 3 of the Pennsylvania Constitution, which provides that "[n]o bill shall be passed containing more than one subject[.]" It appears from the applicable jurisdictional statutes and appellate procedural rules that the Fair Share Act will remain in effect at least until the Pennsylvania Supreme Court decides the appeals in the DeWeese and Hicks cases.

These rulings and appeals potentially affect all cases involving injuries occurring on or after August 18, 2002. It should be noted that regardless of which law ultimately is determined to apply--the old law or the Fair Share Act—the Charles v. Giant Eagle pro-rata joint tortfeasor release would have the same effect. That is, the settling joint tortfeasor would pay the settlement amount, and the non-settling joint tortfeasor would pay his or her fair share of the verdict.

According to the Pennsylvania Defense Institute, several pieces of remedial legislation currently are pending in the Legislature. However, it could be up to two years before it is resolved as to what exactly the law is in Pennsylvania with respect to joint and several liability