 |
 |
 |
|
|
|
 |
 |
 |
 |
 |
 | |
|
VOLUME 10 August 2005 | ||||||
|
|
COMMONWEALTH COURT VOIDS PENNSYLVANIA’S “FAIR SHARE ACT” Act 57 enactment deemed unconstitutional; “One percent Rule” of joint and several liability reinstated Steven N. Cherry, Esq. In a broad-sweeping opinion issued July 26, 2005, the Pennsylvania Commonwealth Court ruled that the enactment of Act 57 – controversial changes to the long-standing rules of joint and several liability among multiple tortfeasors – was unconstitutionally defective on procedural grounds, and it has voided the law. Although it did not explicitly state so in its Opinion, the effect of the Court’s Order in the matter, DeWeese, et. al v. Weaver , amounts to a return to the “one percent rule” of joint and several liability so dreaded amongst the defense bar and the insurance industry. Act 57, signed into law in June 2002, contained the “Fair Share Act,” a set of major revisions to Pennsylvania’s Comparative Negligence Act and the Joint Contribution Among Joint Tortfeasors Act. Prior to Act 57, Pennsylvania recognized universal joint and several liability among joint tortfeasors in negligence cases. In other words, regardless of the percentages of liability allocated by a jury between them, all liable defendants were deemed to be “jointly and severally” liable to the plaintiff, and plaintiff could collect the full judgment from any one of the liable defendants. The overpaying defendant would then have the right to recover from the other defendants any amounts paid in excess of his own share of liability. That rule, colloquially known as the “one percent rule” made a significant impact in cases where a primarily liable defendant was uninsured, underinsured or judgment-proof. In such cases, a plaintiff could collect his full judgment against a tangentially involved defendant who was found even 1% negligent. Under the Fair Share Act, the rule was changed such that joint and several liability between liable defendants was not automatic. Liability of a defendant would be “joint and several” only if the defendant in question’s apportioned liability was 60% or more of the total liability apportioned to all defendants, or where there was intentional misrepresentation or an intentional tort. In other words, a plaintiff could collect from a defendant more than its own fair share of a judgment only when that defendant was deemed 60% or more liable, or when the tort involved was intentional. The Fair Share Act garnered quite a bit of controversy and political brawling almost as much for the manner in which it was enacted as for the revolutionary change in policy that it represented. The Act was adopted as a late-day revision / addition to a legislative bill concerning mandatory DNA testing for Sexual Criminal Offenders. As enacted and signed, Act 57 contained both provisions for such mandatory DNA testing and the sweeping changes to the civil comparative negligence rules. Following the enactment of Act 57, various opponents of the measure (largely the Democratic leadership of the Pennsylvania House of Representatives) brought suit in the Commonwealth Court of Pennsylvania against the Secretary of the Commonwealth of Pennsylvania seeking the Court to declare the Act unconstitutional on various grounds and invalidate the Act. After prevailing on Preliminary Objections, the plaintiffs sought Summary Judgment in their favor, which the Court granted in the recent Order. In its Opinion, the Court held that the enactment of Act 57 violated Article 3, Section 3 of the Pennsylvania Constitution, which provides that any Act of legislation must contain only one subject, which shall be clearly expressed in its title. As such, the Court held that, in order to pass constitutional muster, each subject in an act must be “germane” or bear a “proper legislative relation,” to the other subjects in the act. The late-addition Fair Share Act provisions of the statute, however, did not meet this test. The proponents of the Act argued that both parts of the act need not relate to each other , but rather, relate to the general overarching subject of either the “business of the courts” or “judicial procedure.” The Court rejected such argument. Quoting its earlier opinion overruling the Preliminary Objections in the case, the Commonwealth Court explained: “We cannot say that requiring DNA samples from incarcerated felony sex offenders bears a ‘proper relation’ to joint and several liability for acts of negligence. While the expungement of a DNA record may arguably relate to the ‘business of the court’, Chapter 47's main purpose is to assist in the investigation and apprehension of criminals. The germane standard is not a high one, but Act 57 does not satisfy it.” The Court also rejected the proponents’ argument that an exception for “statutes codifying or compiling the law” applied, since such exception applied only to statutes that have previously been enacted and are simply being readopted in codified form. It is unlikely that this ruling will mark the end for this politically sensitive issue. An appeal of the Commonweatlh Court’s decision may follow in the Pennsylvania Supreme Court. Additionally, proponents of tort reform in the Pennsylvania legislature may seek to draft subsequent alternative legislation which achieves the same effect, but which passes Constitutional scrutiny. Note that the Fair Share Act was not invalidated on substantive grounds, but rather because of the manner in which it was enacted. UPDATE: On August 1, the Pennsylvania Attorney General filed an appeal of the July 26 Commonwealth Court decision to the Supreme Court of Pennsylvania. Because the Attorney General is a state official, the appeal is “of right”, and acts as an automatic stay of the Commonwealth Court ruling. The legislative defendants have also appealed. Accordingly, the invalidation of Act 57 is “on hold.” It is likely that this matter of state-wide significance will be fast-tracked in the Supreme Court. We will continue to keep you updated on this changing situation. |
||
|
|
|||