Last Spring we reported on DeWeese v. Weaver, in which the Pennsylvania Commonwealth Court declared the Fair Share Act of 2002 unconstitutional under the Pennsylvania Constitution. The Fair Share Act had amended the old joint and several liability law. Under the old law, if two negligent parties were held responsible for a single injury, either could be made to pay the entire damages of the injured party. For example, if one defendant was found to be 99% responsible and the other only 1% responsible, the 1% responsible party could be made to pay 100% of the damages. Under the Fair Share Act, the 1% responsible party could be made to pay only his or her fair share, that is, only 1% of the damages.

As we reported earlier, the DeWeese opinion held that the Fair Share Act violated the state constitution because the Legislature tacked the Fair Share Act onto another, unrelated piece of legislation involving the DNA fingerprinting of sex offenders. The DeWeese opinion and another similar opinion of a Philadelphia trial court judge currently are on appeal to the Pennsylvania Supreme Court, and, as our earlier report indicated, we believe that the pending appeals stay the lower courts' rulings invalidating the Fair Share Act. In the past few months, two other Philadelphia trial court opinions have treated the Fair Share Act as invalid, without discussion of the stay provisions of the applicable rules. Notwithstanding these recent cases and, with all due respect, we believe it still can be argued that the DeWeese ruling has been stayed and that the Fair Share Act applies, at least until the Pennsylvania Supreme Court rules on the issue.

In the meantime, the Legislature passed a new, apparently constitutionally valid version of the Fair Share Act in March of this year. The new act was essentially similar to the existing Fair Share Act--that is, any jointly liable defendant held to be less than 60% at fault would have to pay only his or her fair share of the verdict. Governor Rendell vetoed this bill on March 23, 2006. He seemed to indicate that he would sign a new bill with 50% being the cut-off point, instead of 60%. Nevertheless, this leaves us where we were before--waiting for the state Supreme Court to rule on DeWeese v. Weaver, and on the verge of returning to pure joint and several liability.

If you have any questions about this matter, please contact Todd Narvol at tnarvol@tthlaw.com or 717-237-7133.