Harrisburg, PA and Pittsburgh, PA
Legal Intelligencer
(by Casey Alan Coyle and Ed Phillips)
In 1993, Bill Murray starred in the film Groundhog Day, a comedy about a TV weatherman who becomes trapped in a time loop, forcing him to relive Groundhog Day over and over again. The movie became a common reference during the height of the COVID-19 pandemic as people woke up, realized something was amiss, and then went on with a day that repeated the last. Ever since a two-judge Superior Court panel issued its decision in Spencer v. Johnson, 249 A.3d 529 (Pa. Super Ct. 2021), Pennsylvania tort law has been caught in what seems to be a never-ending, “Groundhog Day” scenario regarding the scope of the Fair Share Act, 42 Pa.C.S. §7102.
The Fair Share Act
The doctrine of joint and several liability is a relic of the English common law dating back to the 17th Century. See, e.g., Smithson v. Garth, 3 Lev. 324, 83 Eng. Rep. 711 (1691). Pursuant to the doctrine, when multiple tortfeasors cause an indivisible injury, each tortfeasor is liable for the full extent of the damages regardless of the percentage of liability assessed by the jury. The doctrine therefore allows the plaintiff to satisfy an entire judgment against any of the defendants—even when one defendant was responsible for only a small amount of the harm. That meant that a defendant found liable for 1% of the harm could be forced to pay 100% of the verdict. This anomaly incentivized plaintiffs to sue deep-pocket defendants to bankroll a much larger verdict than a jury might expect them to have to pay.
Until a decade ago, Pennsylvania was only one of eight states that had yet to alter or repeal joint and several liability. That changed on June 28, 2011, when Governor Tom Corbett signed the Fair Share Act into law. The Act provides that, apart from five exceptions, “a defendant’s liability shall be several and not joint.” 42 Pa.C.S. §7102(a.1)(2). In its place, the Act adopted a proportionate liability model that permits a jury to award damages based on a percentage of fault. Id. §7102(a.1)(1). Following its passage, courts consistently held that the Fair Share Act eliminated joint and several liability for multi-defendant cases—including actions for strict liability—unless the defendant was found liable for 60% or more of the total liability apportioned to all parties, or one of the other four statutory exceptions applied. See, e.g., Rost v. Ford Motor Co., 151 A.3d 1032, 1044 at n.7 (Pa. 2016) (“Pennsylvania has now eliminated joint and several liability in most cases through amendment of the Fair Share Act[.]”); see also Roverano v. John Crane, Inc., 226 A.3d 526, 527 (Pa. 2017) (applying the Act in the context of a strict liability asbestos action). In March of 2021, however, the scope of the Fair Share Act was cast into doubt by a two-judge panel decision.
Spencer v. Johnson
In Spencer, a pedestrian was struck by a motorist operating his wife’s company car and severely injured. The pedestrian sued the motorist, the motorist’s wife (who was authorized to use the car by her employer), and the wife’s employer. At trial, the jury found all three defendants were negligent and their negligence were each factual causes of the pedestrian’s harm. The jury allocated liability among the defendants as follows: the motorist (36%); the motorist’s wife (19%); and the wife’s employer (45%). The pedestrian then sought to mold the verdict to make the wife’s employer jointly and severally liable for her negligence—and, in turn, exceed the 60% threshold required to trigger one of the exceptions under the Fair Share Act. The trial court denied the motion.
On appeal, a two-judge Superior Court panel reversed, holding that the trial court erred by failing to grant the pedestrian’s motion. Spencer, 249 A.3d at 536, 551-52. The panel concluded that the jury’s general verdict warranted a finding that the wife’s employer was vicariously liable for her negligence and their combined liability exceeded 60%, and therefore, the theory of joint and several liability applied under the Act. Id. at 557. The panel then provided what it termed an “alternative basis” for its holding—that, even if vicarious liability did not apply, the trial court still erred because the pedestrian was never alleged or found to have contributed to the accident. Id. at 559. According to the two-judge panel, “[f]or the Fair Share Act to apply, the plaintiff’s negligence must be at issue in the case,” i.e., comparative negligence. Id.
The wife, the wife’s employer, and 19 amici timely moved for reargument, contending, among other things, that:
- Neither the parties nor the amicus curiae argued that the Fair Share Act only applied in instances of comparative negligence, meaning that the two-judge panel raised the issue sua sponte. That practice is disfavored because it is at odds with the core principles underlying appellate law. See, g., Danville Area Sch. Dist. v. Danville Area Educ. Ass’n, PSEA/NEA, 754 A.2d 1255, 1259 (Pa. 2009);
- In setting forth its alternative reasoning, the panel purported to undertake a statutory analysis of the Fair Share Act and determined that the Act applies only “where a plaintiff’s own negligence may have or has contributed to the incident.” Spencer, 249 A.3d at 559. But the panel’s reading of the statute conflicts with the terms of the Act and at least four other Superior Court decisions interpreting the same. Adams v. Rising Sun Med. Ctr., 257 3d 26, 42 (Pa. Super. Ct. 2020); Veneesa, Inc. v. Stevenson, 237 A.3d 491 (Table), at *6 n12 (Pa. Super. Ct. 2020); Roverano v. John Crane, Inc., 177 A.3d 892, 905 (Pa. Super. Ct. 2017) (per curiam), rev’d in part on other grounds, 226 A.3d 526 (Pa. 2020); Fratz v. Gorin, No. 969 EDA 2012, 2013 WL 11266146, at *2 n.3 (Pa. Super. Ct. Apr. 10, 2013); and
- The panel asserted that, in enacting the Fair Share Act, “there is no indication the legislature intended to make universal changes to the concept of joint and several liability outside of cases where a plaintiff has been found to be contributorily negligent.” Spencer, 249 A.3d at 559. Yet, the legislative history reflects that, although proponents and opponents of the legislation disagreed on the merits, they all agreed on one thing: that the Fair Share Act abolished joint and several liability except for five classes of cases. House Legislative Journal, Apr. 11, 2011, at 546, 549, 557, 563; Senate Legislative Journal, June 20, 2011, at 691-93; House Legislative Journal, June 27, 2011, at 1553.
Notwithstanding these arguments, the Superior Court denied reargument.
Ensuing Confusion
In the 26 months since the decision was issued, “[t]here has been a lot of confusion . . . as to whether or not defendants are subject to joint and several liability for a judgment, regardless of their proportionate share of liability.” Ace v. Ace, No. 6242 CIVIL 2020, slip op. at 8 (Monroe Cnty. Ct. Com. Pl. 2023). Such confusion stems from the fact that courts and commentators are split as to whether two-judge panel’s “alternative basis” in Spencer constitutes a holding or dicta. In Snyder v. Hunt, No. 81 EDA 2020, 2021 WL 5232425 (Pa. Super. Ct. Nov. 10, 2021), a Superior Court panel referred to Spencer’s reading of the Fair Share Act as a “holding.” Id. at *6. Likewise, in Anderson v. Motorist Mutual Insurance Co., 608 F. Supp. 3d 214 (W.D. Pa. 2022), a federal district court called the two-judge panel’s “alternative basis” an “alternative holding.” Id. at 223.
In contrast, in Ace v. Ace, the trial court found that Spencer’s interpretation of the Fair Share Act constituted dicta, adding: “To say the legislature enacted a statute to address what was perceived as an unfair result to a big-pocket defendant following finding of minimal fault against them for injury caused by multiple defendants only in cases where a plaintiff is also contributorily negligent, seems like an absurd result. It makes more sense that the legislature would have enacted this measure in all cases of multiple defendants, even where the plaintiff has no contributory negligence.” No. 6242 CIVIL 2020, slip op. at 11-12. A number of commentators have expressed a similar view. See, e.g., Curt Schroder, 10-Year Anniversary of Pa.’s Fair Share Act Marred by Continued Attacks, The Legal Intelligencer (Aug. 12, 2021).
To date, however, neither the en banc Pennsylvania Superior Court nor the Pennsylvania Supreme Court have weighed in on the issue post-Spencer. As a result, litigants and practitioners are experiencing déjà vu, as the uncertainty over the scope of the Fair Share Act persists. Will the Pennsylvania Superior Court, sitting en banc, or Pennsylvania Supreme Court break this proverbial time loop like Bill Murray’s character did at the end of the film? Or are litigants and practitioners destined to relive, in perpetuity, the ongoing battle over the reach of the Act? Only time will tell. For now, in non-comparative negligence cases—which are the vast majority of all negligence cases—joint tortfeasors should beware that their liability may be far greater than their fair share.
Casey Alan Coyle is a shareholder at Babst, Calland, Clements & Zomnir, P.C. and Co-Chair of the firm’s Appellate Practice Group. He focuses his practice on appellate law and complex commercial litigation. He is a former law clerk to Chief Justice Emeritus Thomas Saylor of the Pennsylvania Supreme Court. Contact him at 267-939-5832 or ccoyle@babstcalland.com.
Edward D. Phillips is an associate at Babst, Calland, Clements & Zomnir, P.C and focuses his practice on complex commercial litigation. Contact him at 412-394-6553 or ephillips@babstcalland.com.
To view the full article, click here.
Reprinted with permission from the May 25, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved.
