Alerts and Updates
Pennsylvania's Fair Share Act Declared Unconstitutional by Commonwealth Court
August 3, 2005
The Commonwealth Court of Pennsylvania has stricken the Pennsylvania Fair Share Act as violative of the state's constitution. DeWeese v. Weaver, No. 567 M.D. 2002, slip. op. at 14 (Pa. Commw. Ct., filed July 26, 2005). The Fair Share Act was enacted to provide relief from Pennsylvania's joint and several liability statute and was seen by many as a positive step for much needed tort reform. The Fair Share Act applies to civil cases when two or more defendants are found liable. The Fair Share Act limits the liability of each defendant to the proportional damages equal to its proportion of the total liability. 44 Pa.C.S. §§ 2301-2336. For example, if two defendants were each found to be 50 percent liable, no one defendant would be accountable for more than 50 percent of the total verdict. The Fair Share Act eliminated joint and several liability under which any one defendant could be held accountable for the entire verdict.
The Commonwealth Court's ruling in DeWeese will result in the reinstatement of joint and several liability, as set forth in Pennsylvania's comparative negligence statute. 42 Pa.C.S. § 7102 (H) (b.1). Under the comparative negligence statute, if a defendant is found 60 percent or more at fault it can be held accountable for the full verdict. However, for intentional torts a defendant can be accountable for the full verdict regardless of the amount of liability assessed against that defendant. 42 Pa.C.S. § 7102 (H) (b.1) (3).
The constitutionality of the Fair Share Act was challenged by members of the Pennsylvania House of Representatives; the Respondents were the sponsors of the legislation. The Act's fatal flaw lay in the means by which the Act was enacted and was not a result of substantive review of the legislation. In October 2001, Senate Bill 1089 ("S.B. 1089") was introduced and was described as "an act amending the DNA Detection of Sexual and Violent Offenders Act" ("the DNA Act"). S.B. 1089 was approved by the Senate and sent to the House, where it was amended; it was returned to the Senate for approval as amended. S.B. 1089 bounced between the House and the Senate again with additional amendments. On its third pass through the House, the Fair Share Act was added to S.B. 1089, in March 2002. S.B. 1089 was ultimately passed in June 2002 and was signed into law by the governor. As enacted, S.B. 1089 included both the DNA Act and the Fair Share Act.
The Petitioners challenged the constitutionality of the dual purposes of S.B. 1089. Article 3, Section 3 of the Pennsylvania constitution prohibits the passage of bills containing more than one subject. Id. at 5-6. While the Respondents claimed the two parts of S. B. 1089 both dealt generally with the "business of the courts" or "judicial procedure" and, therefore, S.B. 1089 did not violate the Pennsylvania constitution, the Commonwealth Court disagreed. The court found that joining the Fair Share Act with the DNA Act in a single bill violated the single subject requirement of Article 3, Section 3. Id. at 11. Thus, the entire bill was declared unconstitutional and void.
While an appeal to the Pennsylvania Supreme Court is permissible, it is unlikely the Respondents will appeal or that an appeal will be successful, as the Pennsylvania high court previously declined to exercise jurisdiction over this matter. City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A. 2d 566 (2003). It remains to be seen whether the bill's sponsors will reintroduce it as a stand-alone piece of legislation.
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