During 2006 the cause of tort reform suffered a signifi cant setback in Pennsylvania. Previous issues of this Newsletter discussed the ongoing Pennsylvania battle regarding joint and several liability. In summary, during 2002, the Commonwealth enacted legislation (sometimes referred to as the “Fair Share Act”) substantially limiting the doctrine’s applicability. 42 Pa. C.S.A. § 7102(b.1-2) (2007). Under the amended statute and with certain exceptions, each of several defendants would only be responsible for proportional damages equal to his or her proportion of the total liability. This procedural change to Pennsylvania’s comparative negligence provision was added as an amendment to a bill addressing DNA testing of sex offenders.
Shortly thereafter, two Democratic legislators fi led suit in Commonwealth Court challenging passage of the Act. Petitioners argued in part that the two purposes of the combined bill had no logical connection and thus the legislation violated the single subject rule of Article III, Section 3 of the Pennsylvania Constitution. The suit remained pending for almost three years. Then during July, 2005, a three judge panel of the Commonwealth Court granted petitioners’ Motion for Summary Judgment and held that the Act was unconstitutional and void. In short, the Court held that “the single subject requirement of Article 3, Section 3 was violated by the joining of joint and several tort liability and the amendment and codifi cation of the DNA Act in a single bill”. DeWeese v. Weaver, 880 A.2d 54, 60 (Pa. Cmwlth. 2005), order aff’d, 906 A.2d 1193 (Pa. 2006). Respondent supporters of the legislation appealed to the Pennsylvania Supreme Court. While that appeal was pending, during March, 2006, the Pennsylvania General Assembly passed legislation that essentially re-enacted major provisions of the Fair Share Act. This bill was crafted as a stand-alone piece of legislation, thus minimizing the likelihood of a successful later attack under the “single subject” rule. Unfortunately, the bill was ultimately vetoed by Governor Edward Rendell.
Attention next moved back to the Pennsylvania Supreme Court. On September 28, 2006, the Court entered a one sentence Order affi rming the Commonwealth Court’s order declaring that the Fair Share Act was unconstitutional and void. DeWeese v. Cortes, 906 A.2d 1193 (Pa. 2006).1
Responsibility for moving forward on this important aspect of tort reform has thus passed back to the Pennsylvania legislative and executive branches. In his veto message, Governor Rendell acknowledged the need for some limits on the doctrine of joint and several liability to protect Pennsylvania businesses from unfair and inequitable results. However, the Governor said that he was vetoing the bill “because it does not effectively balance the critical needs of victims who should be adequately compensated for their injuries with the reasonable needs of businesses to limit their exposure to liability for damages caused by other parties.” Supporters of the legislation might respond that both the original Fair Share Act and its re-enactment balanced very well the needs of various parties. Governor Rendell went on to encourage a further effort to fi nd a solution. In this regard, during March, 2007, several bills dealing with this subject were introduced in the General Assembly and referred to Committee. It is diffi cult at this point to predict the likely outcome of any such efforts.