COMMONWEALTH COURT DECLARES "FAIR SHARE ACT" UNCONSTITUTIONAL (07/28/05)

In 2002, Pennsylvania enacted the "Fair Share Act". Under the Act, in civil cases arising after August 2002 where liability for negligence is attributed to more than one defendant, each defendant can only be held liable for proportional damages equal to his proportion of the total liability. This was a dramatic departure from the prior rule, which imposed joint and several liability on all defendants and potentially exposed defendants with a minor degree of fault to responsibility for paying the entire damage award.

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. It based its ruling principally on the so-called "single subject" requirement of Article 3, Section 3 of the Pennsylvania Constitution. That provision states that: "No bill shall be passed containing more than one subject, which shall be clearly expressed in its title ..." Since 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. In short, the Commonwealth Court found that the procedure by which the Act was passed was improper.

While Supreme Court review of DeWeese will likely be sought, for the moment it would appear that the courts of Pennsylvania will impose joint and several liability upon all defendants in civil actions, regardless of their degree of fault.