Post & Schell E-Flash

E-Flash Update

Commonwealth Court Rules Fair Share Act Unconstitutional

In a unanimous decision filed July 26, a three judge panel of the Pennsylvania Commonwealth Court ruled that the Fair Share Act, passed in 2002, was unconstitutional. The Fair Share Act repealed the general rule of joint and several liability and provided that defendants, with limited exceptions, were responsible to pay only their percentage share of a verdict. The Court's ruling was based on procedural issues related to the manner in which the statute was passed and not on any substantive objection to the statute's intent. An appeal by the Pennsylvania Attorney General's office is expected and such an appeal will act as a stay on the Commonwealth Court's decision. There is already a case before the Pennsylvania Supreme Court on the same question and a ruling there will provide a final answer regarding the law's constitutionality.

Pending a decision by the Supreme Court, it is recommended that in any case involving multiple defendants where a client is found liable, the trial court be asked to have any judgment entered against the client reflect only the amount of responsibility under the Fair Share Act. In addition, in multiple defendant strict liability cases, the trial court should still be asked to have the jury apportion liability among the defendants on the verdict slip.

If the Supreme Court strikes down the current Fair Share Act, there is pending legislation in Harrisburg to correct the alleged procedural errors in the current Act. See H.B. 60, H.B. 138 and S.B. 435 (Amends Title 42 to replace the Fair Share Act and abolish joint/several liability).

Should you have any questions about the status of, or continued use of, the Fair Share Act in your new or pending litigation matters, please contact Bill Sutton, Esquire, at wsutton@postschell.com or (215) 587-1059.