UPDATE ON PENNSYLVANIA "FAIR SHARE ACT" (03/29/06)

On March 24, 2006, Pennsylvania Governor Ed Rendell vetoed Senate Bill 435, which would have effectively abolished joint and several liability in Pennsylvania. Under S.B. 435, a defendant in a civil action would only be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant's liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned. Under S.B. 435, joint and several liability would only apply in cases of intentional misrepresentation, intentional torts, where a defendant has been held liable for not less than 60% of the total liability apportioned to all parties, a release or threatened release of a hazardous substance under the Hazardous Sites Cleanup Act, and in a civil action in which a defendant has violated the Liquor Code.

In his veto message to the Senate, Governor Rendell acknowledged that the doctrine of joint and several liability has produced inequitable and unfair results that have had a detrimental impact on businesses. However, the Governor stated that he vetoed Senate Bill 435 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. The governor urged legislative leaders to convene a meeting of business leaders, union leaders, consumer groups and legal associations to work out legislation that will resolve these differences and strike the appropriate balance.

Previously, in 2002, the Pennsylvania legislature had passed the Fair Share Act, a bill similar to S.B. 435. However, on July 26, 2005, the Commonwealth Court of Pennsylvania ruled in Deweese v. Weaver, 2005 Pa. Commw. LEXIS 407, that enactment of the Fair Share Act violated the Pennsylvania Constitution, basing its ruling principally on the so-called "single subject" requirement of Article 3, Section 3 of the Pennsylvania Constitution, which states that: "No bill shall be passed containing more than one subject, which shall be clearly expressed in its title ..." Because the Fair Share Act was merely appended to a bill dealing with DNA testing of sex offenders, and because the Court did not believe that requiring DNA samples from incarcerated felony sex offenders bore a proper relation to joint and several liability for acts of negligence, it found that the Act did not pass Constitutional muster and declared the Act to be unconstitutional and void.

The Pennsylvania Attorney General's Office appealed the Commonwealth Court's decision in DeWeese. This appeal operates as an automatic stay of the Commonwealth Court's decision during the pendency of the DeWeese appeal. As such, the Fair Share Act remains the law of Pennsylvania during the pendency of this appeal. S.B. 435 was viewed as an attempt to circumvent the likelihood that the Supreme Court would find the Fair Share Act unconstitutional.