Superior Court Addresses How To Address Settled Defendants at Trial

In its non-precedential decision in the case of Swank v. Rabkin Dermatopathology Laboratory, P.C., No. 342 WDA 2025 (Pa. Super. Dec. 15, 2025 Panella, P.J.E., McLaughlin, J., and Bender, P.J.E.) (Op. by Panella, P.J.E.), the court reversed the entry of judgment in favor of certain Defendants in a medical malpractice case and remanded the case back down for further proceedings.

According to the Opinion, this matter involved a delayed cancer diagnosis case.

Prior to trial, the Plaintiff reached a settlement with all parties except one and proceeded to trial against that last remaining party.

The Plaintiff, along with the settling Defendants, requested the trial court to dismiss the settling Defendants prior to trial because the remaining Defendant did not have any expert to provide an expert opinion against the settling Defendants. Moreover, the remaining Defendant did not file any crossclaim against the settled Defendants. Also, the Plaintiff did not have any expert testimony that was critical of the settling Defendants that would be presented at trial.  At the trial level, it was the Plaintiff’s position that it was legally impossible for there to be a prima facie case established against the settling Defendants and that, as such, those Defendants should be dismissed. 

The trial court disagreed and kept those settling Defendants in the case, relying upon the Fair Share Act in doing so.

As the case proceeded, the trial court did end up dismissing one of the settling Defendants after the Plaintiff’s case-in-chief was completed. The remaining other settled Defendants were dismissed just before closing arguments.

At trial, the Plaintiffs claimed that there was prejudice to the Plaintiff because the jury was left wondering why these Defendants were dismissed after they participated in the trial.

The jury ended up entering a defense verdict.  

The Plaintiff appealed and, in this Superior Court decision, the appellate court reversed the trial court’s decision and remanded the matter for further proceedings after finding that the trial court’s reliance upon Fair Share Act was misplaced.

Judge Panella, who wrote this Opinion, as well as the Fair Share Act case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), noted that the Superior Court has concluded that, for the “Fair Share Act to apply, the Plaintiff’s negligence must be an issue in the case.” See Op. at 13 citing Spencer, 249 A.3d at 559.

The court noted that, in this case, the Plaintiff’s negligence was not at issue in the case. As such, the court ruled that the trial court erred in relying upon the Fair Share Act to keep Defendants in the case.

The court otherwise noted that there is no absolute right to have settled Co-Defendants on a Verdict Sheet. Rather, the appellate court noted that a trial court must determine whether any evidence of the settled Co-Defendant’s liability exists in the case presented before deciding whether that party should be put on the Verdict Slip.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.


I send thanks to Attorney Carmen J. Nocera of the Pittsburgh law firm of Harry S. Cohen & Associates, P.C. for bringing this case to my attention.

Source of image: Photo by Tima Miroshnichenko on www.pexels.com.

Federal District Court Addresses Jurisdictional Issues and also References Fair Share Act

In the case of Tanibajeva v. Skytop Lodge Corp., No. 3:23-CV-01846 (M.D. Pa. Sept. 3, 2024 Mehalchick, J.), the court granted in part and denied in part a Motion to Dismiss on jurisdictional issues in a case involving a zipline accident at a resort in the Poconos.

The court noted that the Plaintiff would be allowed to complete discovery in order to determine proper jurisdiction. 

Judge Mehalchick noted that, while a single shipment of a product in Pennsylvania is ordinarily not enough to confer specific personal jurisdiction, discovery in this case might reveal more significant contacts.

The court also noted that stream of commerce is not a valid jurisdictional theory. 

The court otherwise found that the Defendant in this case did not have regular and systemic Pennsylvania business.

However, the court found that the Plaintiff’s position on the jurisdiction issue was not frivolous. Accordingly, as noted, the court allowed for jurisdictional discovery to be completed.

In this Opinion, Judge Mehalchick also addressed the applicability of the Fair Share Act. 

The court noted its assessment that, under recent Pennsylvania case law, the Fair Share Act does not apply unless the Plaintiff’s potential comparative negligence is at issue. Accordingly, the court found that the allegations of joint and several liability by the Plaintiff were proper in this case. Judge Mehalchick also stated that, based upon her review of the Complaint, there did not appear to be a basis for an argument of comparative negligence.

The court also ruled that Pennsylvania law does not recognize a separate cause of action for willful and wanton misconduct or reckless indifference.

Judge Mehalchick also found the Plaintiff’s express warranty claims failed to plead that the Plaintiff purchased any product from the Defendants.  As such, that claim was dismissed.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

ARTICLE: A Mixed Bag: Plaintiffs and Defendants Score Victories in Law Changes in 2023

The below article of mine providing a year-end review of the notable cases and trends in Pennsylvania civil litigation law appeared in the December 7, 2023 edition of the Pennsylvania Law Weekly:


A Mixed Bag: Plaintiffs and Defendants Score Victories in Law Changes in 2023

Pennsylvania Law Weekly
December 07, 2023

By Daniel E. Cummins

Daniel E. Cummins
Cummins Law
www.TortTalk.com

Here’s a look at the notable trends and decisions in Pennsylvania civil litigation law over the past year along with a review of anticipated decisions to keep an eye out for in the year ahead.

Consent to Jurisdiction by Registration to Do Business

Over the past year, the Pennsylvania Supreme Court was overturned by the U.S. Supreme Court in the case of Mallory v. Norfolk Southern Railway, ___ U.S.___ (June 27, 2023) in a 4-1-4 plurality decision involving the validity of Pennsylvania’s “consent by registration” statute.

In Mallory, the U.S. Supreme Court upheld the Pennsylvania law requiring out-of-state companies that register to do business in Pennsylvania to agree to submit to jurisdiction in Pennsylvania courts on any cause of action filed against the company, even when the alleged injury occurred outside of Pennsylvania. The lower decision by the Pennsylvania Supreme Court was vacated and remanded.

The Pennsylvania Supreme Court thereafter punted on the issue under an order issued on Aug. 29, 2023, and remanded the question presented all the way back down to the trial court for consideration. Presently, the statute providing that a corporation’s registration to do business in Pennsylvania thereby subjects that corporation to Pennsylvania state court jurisdiction over personal injury lawsuits remains valid but subject to continuing attacks.

Test for Proper Venue Revised

Just last month the Pennsylvania Supreme Court continued its penchant for changing the law in a plaintiff-friendly way by revising the test for determining proper venue by rejecting the “percentage of revenue” venue defense.

In the case of Hangey v. Husqvarna, No. 14 EAP 2022 (Pa. Nov. 22, 2023), the court determined that venue was proper in Philadelphia County even though the only 0.005% of the defendant company’s national revenue was derived from that county. As such, the Pennsylvania Supreme Court held that a defendant company’s percentage of sales is no longer sufficient, in and of itself, to determine whether or not a company has sufficient business in a particular jurisdiction for purposes of proper venue.

Accordingly, under yet another plaintiff-friendly decision by the Pennsylvania Supreme Court, a business that only derives a small portion of its revenue from a particular county in Pennsylvania may still be sued in that county. This decision is expected to keep many more civil litigation matters in Philadelphia County.

The Dying Doctrine of Forum Non Conveniens

Over the past year a number of decisions have been handed down by the trial and appellate courts of Pennsylvania that call into question the continuing vitality of the doctrine of forum non conveniens. These numerous decisions are thoroughly researched and reviewed by Judge Terrence R. Nealon in his recent opinion in the case of Brooks v. Griffy, No. 22-CV-3250 (C.P. Lacka. Co. Oct. 18, 2023 Nealon, J.).

While a plaintiff’s choice of forum for a particular lawsuit is given great weight under Pennsylvania law, a defendant does have avenues to challenge the same. One such way is by the filing of a motion to transfer venue under the doctrine of forum non conveniens under Pa.R.C.P. 1006(d)(1).

Although the term forum non conveniens is Latin for “an inconvenient forum,” in order to prevail under such a motion to transfer, a defendant cannot simply show that the venue selected by the plaintiff is inconvenient, but rather must show that the forum vexatious and oppressive from the vantage point of the defendant and the involved witnesses.

In the case of Brooks v. Griffey, a plaintiff from Chester County, Pennsylvania, who was involved in an accident with a Lancaster County tractor-trailer driver in a Montgomery County accident, filed a lawsuit against the driver and his employer, which maintained its principal place of business in Idaho and had a single facility in Lancaster County, Pennsylvania, in the Lackawanna County Common Pleas Court.

The defendant driver and his employer filed a forum non conveniens motion seeking to transfer the case to Montgomery County pursuant to Pa. R.C.P. 1006(d)(1).

In his opinion, Nealon addressed the current status of the law regarding this doctrine and noted that the law had been chipped away at by recent decisions calling into question the continued validity of the arguments made under this doctrine, especially in light of the need to show that the jurisdiction chosen by the plaintiff was oppressive and vexatious.

Notably, Nealon, who presides in what is still apparently the only county Court of Common Pleas in Pennsylvania with an innovative local rule on the use of advanced communications technology (ACT) in court proceedings, pointed to the continued use of ACT in litigation matters as lessening the burdens of the participants. The court noted that the use of ACT, such as Zoom for depositions and minor court conferences, has served to substantially lessen any hardships that may be associated with participating in any given litigation at any location.

Nealon noted that the affidavits in support of the petition filed by the defendant did not support the granting of the motion. The court found that the defendants had not established that the defendants chosen forum was oppressive or vexatious. As such, the defendant’s motion to transfer the case to Montgomery County based upon the doctrine of forum non conveniens was denied.

Social Host Liability

Over the past year, the Pennsylvania Supreme Court considered the extent to which a host of an event at which alcohol is served may be held liable for the actions of an intoxicated guest, particularly when that intoxicated guest is an employee of the host.

In the case of Klar v. Dairy Farmers of America, No. 29 WAP 2022 (Pa. Aug. 22, 2023 Wecht, J.), the Pennsylvania Supreme Court revisited precedents from over a half of a century that have imposed civil liability arising from the provision of alcohol to visibly intoxicated persons with respect to persons and taverns licensed to engage in the commercial sale of alcohol, as compared against those same precedents that have limited the liability of social hosts.

In this Klar case, the Pennsylvania Supreme Court, in a defense-friendly decision, affirmed the decisions of the lower courts that held that an organization hosting an event at which alcohol was provided, but which organization was not a liquor licensee, could not be held liable for injuries caused by a guest who had become intoxicated at the event and was later involved in a motor vehicle accident.

COVID Issues Persists

In 2023, the COVID-19 pandemic fallout continued in the form of ongoing insurance coverage litigation involving business interruption coverage policies, virus exclusions and related issues.

Over the summer, the Pennsylvania Supreme Court issued an order granting allocator to hear arguments in the case of MacMiles v. Erie Insurance Exchange, and the case of Ungarean v. CNA and Valley Forge Insurance. In these two cases, the Pennsylvania Superior Court reached opposite conclusions regarding whether insureds should be allowed business interruption insurance coverage for losses stemming from the COVID-19 pandemic.

For those handling COVID-19 business interruption coverage issues, the Pennsylvania Supreme Court’s decisions in these matters is highly anticipated and will determine whether such claims for coverage are valid, thereby possibly ending the epidemic of these types of coverage cases.

Punitive Damages

In a pro-plaintiff decision in the case of Bert Co. v. Turk, No. 13 WAP 2022 (Pa. July 19, 2023), the Pennsylvania Supreme Court considered U.S. Supreme Court precedent in addressing the constitutionality of an award of punitive damages by a civil jury in Pennsylvania.

In the Bert case, the court reviewed the appropriate ratio calculation to be used by the courts to measure the relationship between the amount of punitive damages awarded against multiple defendants. The court declined to create a bright-line rule to determine when punitive damages are to be considered to be unconstitutionally excessive.

In this case, the jury had awarded $250,000 in compensatory damages as well as a total of $2.8 million dollars in punitive damages. The defendants asserted that this award went against U.S. Supreme Court precedent holding that punitive damages generally should not exceed 10 times the amount of a compensatory damages award.

The Pennsylvania Supreme Court determined that the defendants’ approach was an incorrect calculation. The Pennsylvania Supreme Court generally endorsed the per-defendant analysis of the ratio, instead of a per-judgment analysis, as being consistent with federal constitutional principles that require consideration of each defendant’s due process rights relative to the entry of punitive damages. According to a July 24 article by Pennsylvania Law Weekly litigation reporter, Aleeza Furman, titled “‘Sky’s the Limit’: Pa. Justices’ Punitive Damages Rulings Creates Uncertainty for Defendants,” commentators on the plaintiffs side of the bar view this decision as upholding the goals of punitive damages. In contrast, members of the defense bar noted that this decision opened a new door for unrestrained punitive damages awards while, at the same time, limiting the types of challenges a defendant can assert against such an award.

Stacking Waiver Forms

In what was considered to be a case of first impression, in Franks v. State Farm Mutual Automobile Insurance, No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.), the Pennsylvania Supreme Court issued a defense-favorable decision in holding that that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived through a waiver form executed by the insured, did not require the insurance carrier to secure a renewed expressed waiver of stacked coverage under Section 1738(c).

The basic rationale of the court was that Section 1738 requires insurance companies to secure a new written waiver of UIM coverage whenever an insurance policy is purchased. Here, there was a change made to an existing policy. No new policy was purchased. As such, according to the Pennsylvania Supreme Court, there was no requirement under the law for the carrier to secure a new waiver form.

 
Household Exclusions

In the case of Erie Insurance Exchange v. Mione, No. 89 MAP 2021 (Pa. Feb. 15, 2023) (Op. by Wecht, J.), without admitting to the same, the Pennsylvania Supreme Court did an about face on the issue of the enforceability of household vehicle exclusions in automobile insurance policies. Whereas the Pennsylvania Supreme Court previously ruled in its decision of Gallagher v. GEICO that household exclusions are unenforceable across the board, in this more recent Mione decision from earlier this year, the court has now held that household exclusions do remain enforceable under Pennsylvania law in certain circumstances.

In its previous 2019 decision in the case of Gallagher, which was repeatedly described in the Law Weekly as resulting in a ‘seismic” change in the law, the Pennsylvania Supreme Court wrote “we hold that the household vehicle exclusion violates the MVFRL; therefore, these exclusions are unenforceable as a matter of law.” See Gallagher v. GEICO, 201 A.3d 131, 138 (2019). That unfortunate and flawed decision led to an unnecessary four years of upheaval and expensive litigation in this area of the law.

Although the Pennsylvania Supreme Court in the previous case of Gallagher v. Geico, and again in the case of Donovan v. State Farm, attempted to eradicate the household exclusion across the board, in this decision of Erie Insurance Exchange v. Mione, the Pennsylvania Supreme Court did an about face and distinguished and limited its previous decision in Gallagher v. GEICO and instead affirmed the lower court decision that the household exclusion was valid and enforceable.

In this Mione decision, Justice David Wecht noted that the court “reiterates today that the holding in Gallagher was based upon the unique facts before the court in that case, and that the decision there should be construed narrowly.”

 
Service of Process

There were many decisions handed down over the past year by trial and appellate court judges confirming that a case will be dismissed if a plaintiff does not make good faith efforts to complete service of original process on the actual defendant in the matter in accordance with the case of Lamp v. Heyman and its progeny. To access a number of these decisions as summarized on the Tort Talk Blog (www.TortTalk.com), use this link: https://rb.gy/4t5nrk.

Statutory Caps

In the case of Freilich v. SEPTA, No. 327 C.D. 2022 (Pa. Cmwlth. July 6, 2023) [opinion not reported], the Pennsylvania Commonwealth Court rejected a plaintiff’s challenge to Pennsylvania’s liability caps for state agencies, such as SEPTA and PennDOT. In so ruling, the appellate court upheld a trial court order reducing a $7 million stipulated jury verdict entered by a jury against SEPTA to the $250,000.00 statutory liability cap required by Pennsylvania law under 42 Pa.C.S.A. Section 8528(b).

Indications are that plaintiffs’ attorney plans to appeal the case up to the Pennsylvania Supreme Court. It remains to be seen whether the Plaintiff-oriented Pennsylvania Supreme Court will continue its judicial activism in favor of plaintiff’s causes by changing the established law or will instead make a rare showing of judicial restraint and hold that any changes to this law should come from the legislative branch of the Pennsylvania government.

Fair Share Act

Trial courts continue to split on the validity and enforceability of the dicta in the decision of Spencer v. Johnson, 249 A.3d 529 (Pa.Super. 2021), which decision contains superfluous commentary indicating that the Fair Share Act may not apply in cases where the plaintiff is an innocent victim of an accident and not contributorily negligent. This issue can routinely come into play, for example, in medical malpractice cases where a plaintiff is under anesthesia or where a plaintiff is a guest passenger in a motor vehicle that is in an accident.

This past year, in the case of Ace v. Ace, No. 6242-CIVIL-2020 (C.P. Monroe Co. Jan. 12, 2023), Judge David J. Williamson issued an opinion in a nonjury trial arising out of a shooting incident. The court addressed the import of the dicta in the Spencer v. Johnson decision relative to the applicability of the Fair Share Act in a case in which no liability is assessed to a plaintiff.

Williamson then noted that “there has been a lot of confusion recently as to whether or not defendants are subject to joint and several liability for a judgment, regardless of their proportionate share of liability.” After reviewing the history of the Comparative Negligence Act and the Fair Share Act, Williamson asserted that “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.”

That being said, Williamson went on to review the contrary result noted in the dicta put forth by the Pennsylvania Superior Court in its Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021) decision. Williamson noted that the rationale of the Spencer court regarding Fair Share Act “appears as dicta in the Superior Court’s decision, as it was not the direct holding” of the Superior Court.

Despite noting earlier in his decision that the reasoning as contained in the Spencer decision was “absurd,” Williamson, apparently feeling compelled to do so, stated that he would “adhere to the dicta stated in Spencer in this particular case, and find joint and several liability without the application of the Fair Share Act as between both defendants” given that there was no finding of contributory negligence against the plaintiff in this case.

In contrast, another trial court judge found no fault with the validity of the Spencer v. Johnson decision. In the case of Tucchi v. Carroll, No. CV-2018-1794 (C.P. Northumb. Co. Jan. 24, 2023), a trial court judge ruled that, pursuant to Spencer v. Johnson, 249 A.3d 529, 559 (Pa. Super. 2021), that the Fair Share Act was inapplicable given that the minor plaintiff in this matter was not found to be contributorily negligent by the jury or, in other words, was an innocent plaintiff. In a footnote in his order, the judge noted that the Spencer decision “was a precedential holding of the Superior Court after an analysis of the Fair Share Act, and not “dicta” as contended by” the defendant.”

What to Watch for in 2024

As noted above, looking ahead to 2024, litigators are anticipating how the Pennsylvania Supreme Court will rule on the issue of coverage under business interruption policies as applied to the government ordered closures of businesses during the COVID-19 pandemic.

Auto accident litigators are anticipating a decision from the Pennsylvania Supreme Court on the validity of the regular use exclusion found in automobile insurance policies. Keep an eye out for a decision in the high court in the case of Rush v. Erie Insurance Exchange.

In terms of any other anticipated events in 2024, it is noted that on May 4, 2024, the Tort Talk blog, found at www.TortTalk.com and which is utilized by civil litigators as a resource for streamlined legal research on a wide variety of civil litigation topics, will celebrate 15 years of providing free updates on the law to both the bar and the bench.

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

Northumberland Court of Common Pleas Judges Cites to Spencer v. Johnson Dicta on Fair Share Act as Not Dicta

Definition of Dicta:

"A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential."

Black's Law Dictionary 1177 (9th ed. 2009).

In the case of Tucchi v. Carroll, No. CV-2018-1794 (C.P. Northumb. Co. Jan. 24, 2023 Saylor, S.J.), a trial court judge addressed a Defendant's post-trial motions following the entry of a jury verdict in favor of the Plaintiff against three (3) Defendants in a personal injury civil litigation matter.

In this case, the moving Defendant argued that the verdict against all three (3) Defendants for the total amount awarded should be stricken under the Fair Share Act.  This position was opposed by the Plaintiff.

In an Order only, Senior Judge Charles H. Saylor, sitting in the Northumberland County Court of Common Pleas, ruled that, pursuant to Spencer v. Johnson, 249 A.3d 529, 559 (Pa. Super. 2021), that the Fair Share Act was inapplicable given that the minor Plaintiff in this matter was not found to be contributorily negligent by the Plaintiff or, in other words, was an innocent Plaintiff.

In a footnote in his Order, the judge noted that the Spencer decision “was a precedential holding of the Superior Court after an analysis of the Fair Share Act, and not “dicta” as contended by Defendant Carroll.”

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Stephen A. Seach of the Seach Law Offices in Sugarloaf, PA for bringing this case to my attention.

For more cases and articles regarding the Fair Share Act here on Tort Talk, please click HERE.

Although Noted To Be "Absurd," the "Dicta" of Spencer v. Johnson Regarding the Fair Share Act Applied in a Monroe County Case

In the case of Ace v. Ace, No. 6242-CIVIL-2020 (C.P. Monroe Co. Jan. 12, 2023 Williamson, J.), the court issued an Opinion in a non-jury trial arising out of a shooting incident and following the entry of default judgments against Defendants who did not appear for the trial.  

Of note, the Court addressed the import of the dicta in the Spencer v. Johnson decision relative to the applicability of the Fair Share Act in a case in which no liability is assessed to a Plaintiff.  Although Judge Williamson noted that the "dicta" in the Spencer v. Johnson contained reasoning that seemed "absurd," he apparently felt compelled to apply it to this case.

By way of background, the court noted that default judgments had been previously entered against the Defendants and that neither Defendant appeared at the time of the non-jury trial at which the only issue was the issue of damages.

The court found that the evidence presented confirmed that the Plaintiff had met his burden of proof with regards to causation and damages. As such, the Court in this non-jury trial found it necessary to apportion liability between the two Defendants for the Plaintiff’s injuries.

Liability was apportioned by the Court to both Defendants.  No percentage of liability was assessed to the Plaintiff. 

Judge David J. Williamson
Monroe County CCP

Judge Williamson then noted that "[t]here has been a lot of confusion recently as to whether or not defendants are subject to joint and several liability for a judgment, regardless of their proportionate share of liability.  See Op. at p. 8.

In making this decision, the Court addressed the history of the Comparative Negligence Act and the Fair Share Act.

Judge Williamson noted that, when passed in 2011, the Fair Share Act was thereafter interpreted by many courts as abolishing joint and several liability in most negligence cases such that defendants would only be responsible for their percentage of negligence assessed by the jury except in those instances where the exceptions under the Act were applicable.

The court noted that, with respect to this case, the exceptions which are found at 42 Pa.C.S.A. Section 7102(a.1)(3) applied to one of the defendants in this case relative to that one defendant being found to have engaged in an intentional act and by the fact that that same defendant had been found to be more than 60% liable.

The Court noted, however, that the other Defendant did not fall under any of the exceptions.

Judge Williamson noted that whether subsection (a.1) of the Fair Share Act applied to this case "is now very much in doubt."  See Op. at p. 11.

The Court noted, "The statute heading at 42 Pa.C.S.A. Section 7102 is "Comparative negligence."  This is the legal principal (sic) covering when a plaintiff is at fault in some percentage for their own injuries, together with a defendant or defendants.  The Fair Share Act as enacted addresses the situation of a plaintiff who is contributorily negligent at subsection (a), titled as "General rule."  Subsection (a.1) addresses recovery against multiple defendants and is titled "Recovery against joint defendants; contribution."  Subsection (a.1) makes no mention of a plaintiff's contributory negligence."  See Op. at p. 11.

In this regard, Judge Williamson wrote “The legislative intent, in light of an enactment of the Fair Share Act, appears to re-affirm the general rule regarding the contributory negligence of a Plaintiff, and to add provisions regarding the responsibility for an award as to multiple Defendants. It would seem that subsection (a.1) would apply in all cases, including those where a Plaintiff has some level of fault, or no level of fault at all. Otherwise, it would seem likely that the language of subsection (a.1) would have referenced a contributorily negligent Plaintiff if that subsection only applied in instances of comparative negligence attributed to a Plaintiff. 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 injuries caused by multiple Defendants only in cases where 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.”

That being said, Judge Williamson went on to review the contrary result noted in the dicta put forth by the Pennsylvania Superior Court in its Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021) decision. Judge Williamson noted that the Superior Court in Johnson analyzed the Fair Share Act and concluded that the legislature only intended for the joint and several provisions of subsection (a.1) to apply in cases where a Plaintiff is also found to have been contributorily negligent. Judge Williamson stated that the Superior Court in Spencer reasoned that, in all other cases, joint and several liability applied regardless of the percentage of fault of each Defendant.

In his decision, Judge Williamson noted that the rationale of the Spencer court regarding Fair Share Act “appears as dicta in the Superior Court’s decision, as it was not the direct holding” of the Superior Court.

Judge Williamson also noted that the Spencer decision “was also a panel decision, and not one made by the entire court sitting en banc.” See Op. at 13.

Judge Williamson also noted that the ruling in Spencer was not appealed to the Pennsylvania Supreme Court.

Based upon Judge Williamson’s review of the Spencer decision, he noted his belief that the Superior Court “would rule that joint and several liability applies to all Defendants without limitations of the Fair Share Act, unless the Plaintiff has some amount of contributory negligence assessed against him or her.” Id.  

Despite noting earlier in his decision that the reasoning as contained in the Spencer decision was "absurd," Judge Williamson, apparently feeling compelled to do so, stated that he would “adhere to the dicta stated in Spencer in this particular case, and find joint and several liability without the application of the Fair Share Act as between both Defendants” given that there was no finding of contributory negligence against the Plaintiff in this case.  

In other words, given that there was no contributory negligence assessed against the Plaintiff in this matter, the Fair Share Act was found not to apply, and the Plaintiff was free to collect the entire verdict from either Defendant even though one Defendant had been assessed with 70% liability and the other Defendant was hit with 30% of the liability.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 21, 2023).

COMPILATION OF THE ARTICLES ON THE SPENCER v. JOHNSON DEBATE REGARDING THE SCOPE OF THE FAIR SHARE ACT

A series of articles were recently published in The Pennsylvania Law Weekly on the debate over the issues of (1) whether a portion the Pennsylvania Superior Court's decision in Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021) on the scope of the Fair Share Act amounted to dicta and, (2) whether the Fair Share Act applied in cases which involved an innocent Plaintiff, i.e., a Plaintiff who is a guest passenger in a car in an accident, a Plaintiff who is subjected to medical malpractice while under anesthesia, etc.

Those articles are, as follows:

"Dicta, Dicta, Dicta:  Innocent Victim Plaintiffs and the Fair Share Act (Part 1)" by Daniel E. Cummins.  Pennsylvania Law Weekly (July 21, 2022).

"Dicta, Dicta, Dicta:  Innocent Victim Plaintiffs and the Fair Share Act (Part 2)" by Daniel E. Cummins.  Pennsylvania Law Weekly (August 4, 2022).

"Why 'Spencer v. Johnson' Is Precedential and Proper Statutory Construction" by Scott B. Cooper and Leonard A. Sloane.  Pennsylvania Law Weekly (September 8, 2022).

"A Measured Response:  Flawed Dicta on Fair Share Act in 'Spencer' Should be Rejected" by Daniel E. Cummins.  Pennsylvania Law Weekly (September 29, 2022).

These articles provide an overview of the arguments that may be presented by Plaintiffs and Defendants on the questions presented.

For your review and with the permission of the Pennsylvania Law Weekly, I have compiled these articles in the chronoligical order of their publication dates at this LINK.

Source of image:  Photo by Sora Shimazaki on www.pexels.com.

ARTICLE: Dicta, Dicta, Dicta: Innocent Victim Plaintiffs and the Fair Share Act

 This article of mine was published in two parts in the Pennsylvania Law Weekly in July and August of 2022 and is republished here with permission:

Dicta, Dicta, Dicta: 

Innocent Victim Plaintiffs and the Fair Share Act 




By Daniel E. Cummins | July 21, 2022

Daniel E. Cummins, Clarks Summit firm Cummins Law. Courtesy photo


Part One of the Article (published July 21, 2022)

Since the effective date of the Fair Share Act over a decade ago, the act has been applied in Pennsylvania without much controversy. Then, in dicta found in the Pennsylvania Superior Court’s decision from last year in the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), that court raised, on a seemingly sua sponte basis, the proposition that the Fair Share Act should not apply in cases involving innocent victim plaintiffs.

Examples of cases where a plaintiff may be an innocent victim include cases where a plaintiff is a guest passenger in a vehicle involved in an accident, or cases where a plaintiff struck while walking in the crosswalk with the pedestrian light in his favor, or a in claims involving plaintiffs who are the victims of negligent medical care while under anesthesia. As such, this dicta could come into play in a number of scenarios going forward.

While in English Literature, as per poet Gertrude Stein, “a rose is a rose is a rose,” in the law, at least up until recently, dicta is dicta is dicta. It seems that the unfortunate and troublesome liberalization of the meaning and scope of previously concrete terms and tenets that is becoming more and more common in society in this day and age is spilling over into the jurisprudence of Pennsylvania law, including with regards to the concept of dicta.

In this regard, the notion that the Fair Share Act does not apply when an injured party plaintiff is an innocent victim of the negligence of another seems to be gaining steam in recent several state and federal court decisions despite the fact that this notion is based upon dicta initially espoused in the Spencer decision. More specifically, certain court decisions referencing the Spencer decision have described the Superior Court’s review of the issue in Spencer as something other than dicta, with some of those courts even going so far as to describe that dicta as amounting to a “holding” on the issue of whether the Fair Share Act applies to innocent plaintiffs. This is made more troublesome by the possibility that the dicta in question from the Spencer case was wrongly decided.

The Fair Share Act

Under the “old” rule of joint and several liability that existed before the 2011 effective date of the current Fair Share Act, if any defendant was found to be even only 1% responsible for causing an accident, that defendant could be compelled to pay the entire verdict (and to, thereafter, seek a reimbursement of its overpayment from any other responsible co-defendant). This rule of law applied regardless of whether a plaintiff was an innocent victim or not.

Under the Fair Share Act, found under the amended 42 Pa.C.S.A. Section 7102, it became Pennsylvania law in 2011 that each defendant would instead only be responsible to pay their “fair share,” that is, the percentage of the verdict that a jury had assessed to that defendant.

There were specific exceptions written into the law by the General Assembly. If any one defendant was found to be 60% or more responsible for the happening of an accident, then that defendant would be responsible to pay the entire verdict (and to, thereafter, be able seek a reimbursement of its overpayment from any other responsible co-defendant).

There are also other express exceptions written into the Fair Share Act by the legislature as well, including an exception in cases involving dram shop claims, to name another one.

‘Spencer v. Johnson’

From 2011 forward, the Fair Share Act was applied for a decade without much controversy. That all changed with the Pennsylvania Superior Court’s decision in the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021). In Spencer, an innocent plaintiff pedestrian alleged personal injuries as a result of being struck by a vehicle while the plaintiff was crossing the street within a crosswalk. The case involved three defendants.

The issue on appeal in this case focused on the extent to which a plaintiff could request that the percentages of different defendants could be added together, under theories of vicarious liability, in order that a plaintiff may come up with a combined amount of a 60% percentage of liability that could thereby allow a plaintiff to potentially be in a position to compel a deep pocket defendant to pay the entire verdict under the 60% exception found under the Fair Share Act.

Over the first approximately 26 pages of the Superior Court’s opinion in Spencer, the court accepted the plaintiff’s argument that the employee defendant’s negligence should be imputed to the defendant employer’s negligence because the defendant employee was acting within the scope and course of her employment with the employer at the time of the accident. The Superior Court reversed and remanded the case to the trial court for further proceedings with regard to a molding of the verdict in terms of the percentages of responsibility. The above decision represented the holding of the Spencer court in this case. One would think that, with the issue before the court having been decided, the court’s opinion would end at that point.

But the Pennsylvania Superior Court in Spencer was apparently not finished with its opinion in the case before it. Rather, on a seemingly sua sponte basis, the appellate court went on to note, “assuming arguendo,” that is, assuming for the sake of argument, that a different set of hypothetical facts applied, the court would have gone on to decide additional issues that were not then before the court. In other words, the court was offering up dicta.

More specifically, the court in Spencer raised the hypothetical of a different situation, that being of a defendant employer who was found by the jury not to be vicariously liable for the actions of its employee such that those defendants were instead required to be treated separately. The court in Spencer noted in this dicta, that, under that different scenario (which was not before that court), the Fair Share Act would not have applied because, according to the Spencer court, the Fair Share Act only applied to cases in which the plaintiff’s comparative negligence was an issue in the case, that is, cases where the plaintiff was assessed a percentage of responsibility for causing his own accident. Stated otherwise, in its sua sponte dicta, the court in Spencer stated that the Fair Share Act was not applicable in cases involving innocent plaintiffs.

Is the ‘Spencer’ Dicta Even Valid?

In addition to these additional superfluous statements by the court in Spencer amounting to dicta, questions also remain as to the validity of that court’s notion that the legislature intended that the Fair Share Act not apply to innocent plaintiffs. The Spencer court stated that, in its reading of the history and structure of the Fair Share Act, the court found “no indication that the legislature intended to make universal changes to the concept of joint and several liability” in cases involving innocent plaintiffs.

Yet, there can be no question that the legislature did make universal changes to the concept of joint and several liability with the passage of the Fair Share Act. Prior to the act, any defendant found to be 1% responsible for a plaintiff’s injuries, could be made to pay the entire verdict. After the passage of the Fair Share Act, each defendant, unless they were found to be 60% or more liable, would only have to pay their percentage share of the verdict. The old rule of liability was turned upside down and eradicated across the board by the new Fair Share Act.

Why would the legislature pass a “Fair Share” Act to apply to personal injury matters but still intend to require a defendant found only 1% liable to be unfairly responsible to pay the entire verdict simply because a plaintiff was not found to be negligent?

Also, as noted, the General Assembly wrote several express exceptions into the actual wording of the Fair Share Act. It therefore stands to reason that, if the legislature wanted to carve out another exception applicable to cases involving innocent plaintiffs, the General Assembly would have expressly written such an exception into the Fair Share Act to join the other exception already contained in the act.

The rhetorical question becomes, if the legislature did not expressly write such an exception into the act, is it the place of the courts to do so?

In part two of this article, I will discuss the loose language of dicta and whether change is on the horizon.

Part Two of the Article (published August 4, 2022)

As discussed in part one of this article, since the effective date of the Fair Share Act over a decade ago, the act has been applied in Pennsylvania without much controversy. Then, in dicta found in the Pennsylvania Superior Court’s decision from last year in the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), that court raised, on a seemingly sua sponte basis, the proposition that the Fair Share Act should not apply in cases involving innocent victim plaintiffs.

In this regard, the notion that the Fair Share Act does not apply when an injured party plaintiff is an innocent victim of the negligence of another seems to be gaining steam in recent several state and federal court decisions despite the fact that this notion is based upon dicta initially espoused in the Spencer decision.

In part two of this article, I will discuss the loose language of dicta and whether change is on the horizon.

Loose Language Morphing Dicta Into a ‘Holding’?

Despite the questionable validity of the dicta of the Spencer v. Johnson case in this regard, judges in more recent decisions have referred to the dicta found in Spencer regarding the alleged inapplicability of the Fair Share Act to cases involving innocent plaintiffs as a “holding” of the Spencer court.

In the case of Snyder v. Hunt, 268 A.3d 416 (Table)(Pa.Super. 2021), an unpublished decision, a different panel of the Pennsylvania Superior Court than that in the Spencer case addressed issues raised on appeal from a nonsuit entered in favor of the defendants in a trip-and-fall case.

Of note, on appeal, the Pennsylvania Superior Court remanded the case back down to the trial court for further trial proceedings against certain defendants, some of whom had not appeared for the first trial. With regards to those defendants, the appellate court noted that, under Spencer, since those defendants had not alleged, or offered proof, as to any negligence on the part of the plaintiff, “the Fair Share Act, 42 Pa.C.S.A. Section 7102, [did] not shield them from the common law of joint and several liability under Spencer.”

In this regard, the court in Snyder specifically cited to the Spencer decision and, in a parenthetical attached to that citation, described the Spencer decision as “holding that ‘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.’”

It may never be known if the use of the term “holding” to describe this portion of the Spencer decision was intentional by the Pennsylvania Superior Court in Snyder or, rather, a simple, casual reference to the decision for purposes of including a parenthetical in the citation. Regardless, members of the plaintiff’s bar are sure to continue to pounce on the same in an effort to turn the dicta of the Spencer decision into precedential law going forward.

The possible migration of the dicta at issue in the Spencer case towards a precedential holding has also been exhibited in the recent federal court case of Anderson v. Motorists Mutual Insurance, No. 2:21-CV-00493-CCW (W.D. Pa. June 22, 2022 Wiegand, J.).

A Bold Prediction Based on Dicta

In the Anderson case, the court addressed the issue raised as to the amount of the credit to which the UIM carrier was entitled in a personal injury matter. As part of the analysis the court addressed novel arguments raised under the Fair Share Act.

After the accident, the plaintiffs sued the third party tortfeasor and settled those claims. The plaintiffs then filed a claim for UIM benefits with Motorists Mutual.

Motorists Mutual, as the UIM carrier, denied the plaintiff’s claim on the basis that the value of the claim did not exceed the combined $5.1 million liability limits of the various third party tortfeasors.

In this Anderson case, the plaintiff was seeking a partial summary judgment under an argument that, unless Motorists Mutual could prove that the trucking defendants’ percentage of fault equaled or exceeded 60%, Motorists Mutual should only be entitled to a credit equal only to the amount the plaintiff was legally entitled to recover from the joint tortfeasors, that is, the sum of the lesser amounts actually paid in settlement on the third party side by the operator of the vehicle in which the plaintiff is located and the trucking defendants. The plaintiff asserted that, if the UIM carrier was unable to establish this proof, then the UIM carrier should only be entitled to a credit of the amount paid pursuant to the settlements because the plaintiff would have been unable to recover the full amount of damages from the trucking defendants because the 60% exception to the Pennsylvania Fair Share Act was not met.

The court applied Pennsylvania law and noted that there was no controlling Pennsylvania Supreme Court precedent on the issue of the enforcement of exhaustion clauses concerning UIM benefits. However, it was noted that the Pennsylvania Superior Court had decided a number of cases in this regard, including the case of Boyle v. Erie in which the Superior Court held that a UIM carrier was entitled to the full amount of any liability limits that were available on the third party side.

The plaintiff attempted to assert that the Boyle decision was inapplicable, in part, due to the underlying policy concerns and Boyle being no longer applicable due to the passage of the Pennsylvania Fair Share Act.

The court in this Anderson case held that it did not need to decide whether the Pennsylvania Fair Share Act altered Boyle’s holding. In dicta, the court in Anderson more specifically stated that, even assuming that the enactment of the Pennsylvania Fair Share Act served to alter Boyle’s holding, the plaintiff’s argument still failed because “it is not clear that the Pennsylvania Fair Share Act applies where the plaintiff’s negligence is not in question, as is the case here.”

In this regard, the court in this matter pointed to the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021). The court in this Anderson case stated that, in the Spencer case, the Pennsylvania Superior Court had found, “as an alternative holding,” that for the “Fair Share Act to apply, the plaintiff’s negligence must be an issue in the case.”

The court in Anderson additionally pointed to the above-referenced case of Snyder v. Hunt in support of this proposition as well.

Notably, the court in this Anderson case boldly, and perhaps incorrectly, predicted that, if faced with this issue, “because the decedent’s negligence is not at issue in this case, the Pennsylvania Supreme Court would find that the Fair Share Act does not apply in cases such as this one, where the plaintiff’s negligence is not an issue, and, as a result, that the traditional principles of joint and several liability would control.”

Under this analysis, the court in Anderson held that it did not need to decide whether the Fair Share Act altered Boyle’s holding. The Anderson court went on to find that the language of the exhaustion clause in this case compelled the court to rule that the UIM carrier was indeed entitled to a credit for the full amount of the liability limits available in the underlying third party case.

Is Change on the Horizon, or a Correction?

As noted, the first decade of the life of the Fair Share Act was largely without controversy until the Pennsylvania Superior Court’s sua sponte dicta in the case of Spencer v. Johnson unfortunately came along.

It remains to be seen whether any future court, squarely faced with this issue, would ultimately validate the dicta of the Spencer court or would, instead, leave the legislating to the legislature and rule that, if the General Assembly intended that the Fair Share Act not apply to innocent plaintiffs, then such an exception would have been specifically written into the act.

In the meantime, in light of the controversy created by the dicta in the Spencer v. Johnson decision, litigants and the trial courts are now unfortunately left to struggle over the scope and ambit of the previously clear terms of the Fair Share Act until concrete appellate guidance is otherwise provided.

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

"Innocent Plaintiff" Fair Share Act Argument Gains Steam (Via More Dicta)

In the case of Anderson v. Motorists Mut. Ins. Co., No. 2:21-CV-00493-CCW (W.D. Pa. June 22, 2022 Wiegand, J.), the court addressed the issue raised by the parties as to the amount of the credit to which the UIM carrier was entitled in this particular claim.  As part of the analysis the Court addressed novel arguments raised under the Fair Share Act.

According to the Opinion, this case arose out of a fatal motor vehicle accident. 

After the accident, the Plaintiffs sued the third party tortfeasor and settled those claims. The Plaintiffs then filed a claim for UIM benefits with Motorists Mutual.

Motorists Mutual denied the claim on the basis that the value of the claim did not exceed the combined $5.1 million liability limits of the various third party tortfeasors.

With regards to the coverages at issue in the third party liability side, the Plaintiff was a passenger in a vehicle in which the operator of that vehicle was covered under a liability policy providing $100,000.00 in liability coverage.

The other vehicle involved in the accident was owned by a trucking Defendant who had liability limits of $1 million dollars as well as an umbrella policy with an additional $4 million dollars in coverage.

The Plaintiff settled the third party claim securing the $100,000.00 policy limit that covered the vehicle in which the Plaintiff was located at the time of the incident. The Plaintiff also settled against the trucking company for $55,000.00. Motorist Mutual consented to those settlements.

The court noted that, under the Motorist Mutual UIM endorsement, it was provided that the carrier would pay UIM benefits if “[t]he limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgements or settlements….”

In this matter, Motorists Mutual contended that it should receive a credit of $5.1 million dollars, which was the sum of all of the liability limits at issue (accepting a City of Pittsburgh policy limit, which was handled by the parties and the Court separately).

The Plaintiff was seeking a partial summary judgment under an argument that, unless Motorists Mutual could prove that the trucking Defendants’ percentage of fault equaled or exceeded 60%, Motorists Mutual should only be entitled to a credit equaled only to the amount the Plaintiff was legally entitled to recover from the joint tortfeasors, that is, $650,000.00, which was the sum of the amounts actually paid in settlement on the third party side by the operator of the vehicle in which the Plaintiff is located and the trucking Defendants. 

More specifically, the Plaintiff was contending that the UIM carrier must prove that the trucking Defendants’ liability equaled or exceeded 60% in order for the UIM carrier to claim the full credit of $5 million dollars under that third party Defendants’ policies. The Plaintiff went on to argue that, if the UIM carrier was unable to establish this proof, then the UIM carrier should only be entitled to a credit of the amount paid pursuant to the settlements because the Plaintiff would have been unable to recover the full amount of damages from the trucking Defendants under the Pennsylvania Fair Share Act.

The court applied Pennsylvania law and noted that there was no controlling Pennsylvania Supreme Court precedent on the issue of the enforcement of exhausting clauses concerning UIM benefits. However, it was noted that the Pennsylvania Superior Court had decided a number of cases in this regard, including the case of Boyle v. Erie in which the Superior Court held that a UIM carrier was entitled to the full amount of any liability limits that were available on the third party side.

The Plaintiff attempted to assert that the Boyle decision was inapplicable, in part, due to the underlying policy concerns and Boyle being no longer applicable due to the passage of the Pennsylvania Fair Share Act.

The court in this matter held that it did not need to decide whether the Pennsylvania Fair Share Act altered Boyle’s holding.

The court more specifically stated that, even assuming that the enactment of the Pennsylvania Fair Share Act altered Boyle’s holding, the Plaintiff’s argument was still noted to fail because “it is not clear that the Pennsylvania Fair Share Act applies where the Plaintiff’s negligence is not in question, as is the case here.” See Op. at 13. 

In this regard, the court in this matter pointed to the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021). The court in this Anderson case stated that, in the Spencer case, the Pennsylvania Superior Court found, “as an alternative holding,” that for the “Fair Share Act to apply, the Plaintiff’s negligence must be an issue in the case.” See Op. at p. 13, citing Spencer at 559.

The court additionally pointed to another Pennsylvania Superior case on that similar issue and citing to the Spencer case. See Snyder v. Hunt, No. 851 EDA 2020, 2021 Pa. Super. Unpub. LEXIS 2993, at *14-15 (Pa. Super. Nov. 10, 2021).

The court in this Anderson case predicted that “because the decedent’s negligence is not at issue in this case, the Pennsylvania Supreme Court would find that the Fair Share Act does not apply in cases such as this one, where the Plaintiff’s negligence is not an issue, and, as a result, that the traditional principles of joint and several liability would control."  See Anderson Op. at 14.

Under this analysis, the court in Anderson held that it did not need to decide whether the Fair Share Act altered Boyle’s holding. 

The court went on to find that the language of the exhaustion clause in this case compelled the court to rule that the UIM carrier was indeed entitled to a credit for the full amount of the liability limits available in the underlying third party case (excepting those liability limits possessed by the City of Pittsburgh).

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers McDonald Hudock Guthrie & Rauch, P.C. for bringing this case to my attention.

Source of image:  Photo by Ekaterina Bolovtsova on www.pexels.com.

ARTICLE: Plaintiffs Have Another Banner Year in Civil Litigation, Part 2: General Civil Litigation

Below is a copy of an article of mine that was recently published in the Pennsylvania Law Weekly.  It is republished here with permission.

Plaintiffs Have Another Banner Year in Civil Litigation, Part 2: General Civil Litigation

By Daniel E. Cummins | December 16, 2021

Daniel E. Cummins, Clarks Summit firm Cummins Law. Courtesy photo



The year 2021 proved to be another banner year for the plaintiffs bar in terms of securing important civil litigation court decisions that favor plaintiffs’ causes, some of which overturned decades of precedent going the other way. The concerted, and admirable, effort of the plaintiffs bar in continually fighting their good fight and in banding together to support certain judicial candidates to ensure that they make it up onto the bench continues to pay off in spades and in settlements. In essence, as confirmed by the decisions reviewed below, where there is a will, there is indeed a way.

This first part of the article, which previously appeared in this paper, reviewed the important decisions and trends in the automobile insurance law arena over the past year. This second part of the article will review the notable decisions in the area of general civil litigation law.

Fair Share Act

The Pennsylvania Superior Court recently issued another notable plaintiff-friendly decision in 2021, this one with respect to the Fair Share Act. Although wordy and filled with dicta, the decision foreshadows ongoing litigation on the parameters of the act after a decade of relative quiet since the Fair Share Act was passed.

In the case of Spencer v. Johnson, 2021 Pa. Super. 48 (Pa. Super. March 18, 2021), a plaintiff pedestrian alleged personal injuries as a result of being struck by a vehicle operated by an individual who was driving his wife’s company car while allegedly under the influence of alcohol.

The jury handed down a verdict in favor of the plaintiff in the amount that was just shy of $13 million dollars. The jury assessed comparative negligence among three defendants and found that the plaintiff-pedestrian was innocent.

The appellate court accepted the plaintiff’s argument that the wife’s negligence should be imputed to the company’s negligence because the wife-employee was acting within the scope and course of her employment with the company relative to the accident. The Superior Court reversed and remanded the case to the trial court for further proceedings with regard to a molding of the verdict with regards to adding the percentage of responsibility assessed to the wife with that assessed to the defendant company, the sum of which amounted to a figure of more than 60%. Under the Fair Share Act, the plaintiff was therefore permitted to secure the entire verdict from the deep pocket defendant company.

The Superior Court also went on to note that, “assuming arguendo,” the company was not vicariously liable for the action of the wife and those defendants were instead required to be treated separately, the Fair Share Act would not have applied because the act only applies to cases in which comparative negligence has also been assessed to the plaintiff as well.

The plaintiffs bar has read this portion of the opinion to suggest that, where there is no finding of comparative negligence on a plaintiff, the Fair Share Act does not apply and the case reverts back to the old joint and several law under which a plaintiff could recover the entire verdict against any defendant even if that defendant was only found to be 1% responsible.

In contrast, the defense bar has asserted that this part of the Spencer v. Johnson Opinion appears to be dicta and should only be considered to be more in the form of an advisory opinion by the Superior Court on the scope and reach of the Fair Share Act given that one judge on the Superior Court panel sat out of the decision.

Look for the applicability of the Fair Share Act to remain a hot issue in the years to come.

Attorney Malpractice

In addition to being plaintiff-friendly in 2021, the Pennsylvania Supreme Court was also attorney-friendly over the past year or so. In the attorney malpractice case of Clark v. Stover, 242 A.3d 1253 (Pa. Dec. 22, 2020), the Pennsylvania Supreme Court was requested by the plaintiff to adopt the continuous representation rule, which is applicable in a number of other jurisdictions, to toll the statute of limitations.

Under the continuous representation rule, the applicable statute of limitations would not begin to run until the date on which the defendants’ representation was terminated.

In a decision that benefits attorneys, the court refused to adopt the continuous representation rule and instead held that the occurrence rule would be followed in Pennsylvania. The “occurrence rule,” holds that the statutory period commences upon the happening of the alleged breach of duty by the attorney.

As such, the statute of limitations may begin to run earlier in the underlying case, depending upon when the breach occurs. This may lead to some malpractice plaintiffs finding that their malpractice claims against their attorneys have become time barred by the time the plaintiff decides to take action.

Medical Malpractice

In addition to issuing a notable decision in the arena of attorney malpractice claims, the Pennsylvania Supreme Court also weighed in on issues arising in medical malpractice matters over the past year.

The pendulum has shifted so far to the plaintiffs’ side in terms of their recent successes in the courts on important civil litigation questions of law that a decision by the Pennsylvania Supreme Court that went against the wishes of the plaintiffs bar came as a surprise to many.

In the case of Leadbitter v. Keystone Anesthesia Consultants, No. 19 WAP 2020 (Pa. Aug. 17, 2021), the Pennsylvania Supreme Court issued a long-awaited decision relative to the scope of the Peer Review Protection Act in medical malpractice matters. The central question before the court was the extent to which a defendant doctor’s credentialing file was subject to discovery.

The court in Leadbitter noted that the privilege from discovery afforded by the Peer Review Protection Act only applies to a “review committee,” which is a committee engaging in peer review. However, the Pennsylvania Supreme Court agreed with the hospital’s argument that a credentials committee is a “review committee” for purposes of the Peer Review Protection Act to the extent that it reviewed the quality and efficiency of care provided by a healthcare practitioner.

The Pennsylvania Supreme Court additionally held that the Federal Healthcare Quality and Improvement Act of 1986 protected from disclosure the responses provided by the National Practitioner Data Bank to queries submitted to it.

On the basis of this ruling, the court held that the hospital’s credentialing file for one of the defendant doctors was protected from discovery by the above two acts. This decision has been viewed as a win for medical malpractice defendants and hospitals conducting credentialing activities as it allows those parties to secure candid feedback from physician peers on their colleague’s performance, quality and safety without fear that such feedback would have to be produced in discovery.

Covid-19 Business Interruption Coverage Claims

Over the past two years there has continued to be a number of business interruption coverage actions being pursued by businesses that were forced to close due to governmental COVID-19 pandemic orders.

Most of the court decisions in this regard have found that no coverage is warranted under the applicable business insurance policies as such policies only provided coverage for losses incurred for a direct physical loss or damage to the covered property, and the pandemic had caused no such specific physical damages. See e.g., Penn Asian Senior Services v. Selective Insurance, No. 20-4919 (E.D. Pa. Sept. 30, 2021 Pratter, J.).

The courts have also routinely rejected arguments for coverage based upon the civil authority coverage provisions under the policies. The courts have generally noted that, although the COVID-19 shutdown orders were issued by a civil authority, those shutdown orders were motivated by the pandemic, meaning that the plaintiff’s loss of income was at least indirectly caused by a virus for which coverage was otherwise excluded. See Star Buick v. Sentry Insurance, No. 5:20-CV-03023 (E.D. Pa. May 26, 2021 Leeson, J.).

More specifically, a number of state and federal courts have also found that business interruption coverage was precluded by the application of virus exclusions contained in the policies. See Infinity Real Estate v. Travelers Excess & Surplus Lines, No. 2:20-CV-06398-CMR (E.D. Pa. Sept. 13, 2021 Rufe, J.)

Isolated successes have been realized in this area of the law by businesses whose policies do not have a virus exclusion. In Brown’s Gym v. The Cincinnati Insurance, No. 20-CV-3113 (C.P. Lacka. Co. July 13, 2021 Nealon, J.), the court noted that the policy at issue did not have a virus exclusion that would serve to preclude coverage.

The court in Brown’s Gym also found that the business in this case had alleged that the COVID-19 virus was actually found to be present on its premises. Judge Terrence R. Nealon of the Lackawanna County Common Pleas Court noted that, under a “physical contamination” theory recognized in Pennsylvania, invisible sources such as ammonia fumes, e-coli bacteria, carbon monoxide, gas vapors, lead intrusion, odor from cat urine, or methamphetamine cooking, which made a covered premises unusable, unsafe, or unfit for its intended use have been found to be conditions that could constitute “physical loss of damage” under the terms of a commercial insurance policy.

Nealon went on to opine that, in the wake of the coronavirus pandemic and the related government closure orders, “better reasoned decisions” from across the country have applied the physical contamination theory to implicate business interruption insurance coverage where the insured asserts that the COVID-19 virus was actually present on the covered property, and thereby caused the insured premises to become uninhabitable, inaccessible, or unduly dangerous to use as a result.

Accordingly, based upon the plaintiff’s allegations in the Brown’s Gym case asserting the continuous presence of the COVID-19 virus on its property that allegedly rendered the property unsafe, inaccessible and unfit for its intended use, the court found that the business had sufficiently alleged a “direct physical loss of damage” to its property under the “physical contamination” theory to proceed forward on its business interruption coverage claim.

Nealon also ruled in a similar fashion in his more recent decision in the case of SWB Yankees v. CNA Financial, No. 20-CV-0155 (C.P. Lacka. Co. Aug. 4, 2021 Nealon, J.).

It is anticipated that the COVID-19 virus will continue to make its presence known in these types of coverage disputes in the years ahead with varying results, depending upon the policy language at issue in any given case.

Conclusion

As the above review of the highlights (and lowlights) from the past year in civil litigation shows, the pendulum has certainly swung in favor of the plaintiffs bar in terms of court decisions. Plaintiffs attorneys will likely continue to push their important issues up the appellate ladder in the hopes of continued success in these plaintiff-friendly times. On the defense side, in addition to continuing to litigate many of these important issues, the defense bar may be wise to also increase efforts to effectuate changes in the law through the Legislature as a means to counter the adverse rulings in the court system.

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

Copyright 2021. ALM Media Properties, LLC. All rights reserved.

ARTICLE: Law of Fair Share Act Left Unsettled by Recent Decision

Below is a copy of an article of mine that was recently published in the Pennsylvania Law Weekly regarding the newly unsettled status of the Fair Share Act in personal injury matters.

Law of Fair Share Act Left Unsettled by Recent Decision

By Daniel E. Cummins | July 29, 2021



Dan E. Cummins of Cummins Law.

The Pennsylvania Superior Court recently issued a notable decision earlier this year in March 2021 with respect to the Fair Share Act in the case of Spencer v. Johnson. That case was recently settled before any further appellate review could be had on the important issue of the scope and ambit of the Fair Share Act.

As noted below, questions remain as to what extent that act may apply in a case involving an innocent plaintiff with no percentage of responsibility. For example, questions have arisen as to whether an innocent plaintiff, such as an innocent guest passenger plaintiff involved in a car accident, or a medical malpractice plaintiff injured as a result of treatment, may assert that the Fair Share Act does not apply to their case such that they should be able to recover the entire verdict against any responsible defendant, even if that defendant is only found to be 1% responsible.

 
Background of the Fair Share Act

By way of background, under the “old” rule of joint and several liability, if any defendant was found even to only be 1% responsible for causing an accident, that defendant could be compelled to pay the entire verdict (and to, thereafter, seek a reimbursement of its overpayment from any other responsible co-defendant).

Then, in 2011, the Pennsylvania legislature passed the Fair Share Act.

Under the Fair Share Act, it became Pennsylvania law that each defendant would only be responsible to pay for that percentage of the verdict that a jury assessed to that defendant. There was one notable exception in this context, i.e., if any one defendant was found to be 60% or more responsible for the happening of an accident, that defendant would be responsible to pay the entire verdict (and to, thereafter, seek a reimbursement of its overpayment from any other responsible co-defendant).

There are other exceptions to the Fair Share Act as well, including in cases involving Dram Shop claims, but those other exceptions are not covered here.

And so, litigants proceeded under the Fair Share Act for a decade since its passage into law back in 2011. Then came along the case of Spencer v. Johnson earlier this year that has caused this area of the law to become somewhat unsettled.

The ‘Spencer v. Johnson’ Decision

In the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. March 18, 2021 Panella, P.J., McLaughlin, J., McCaffery, J.)(Op. by Panella, P.J.), an innocent plaintiff pedestrian alleged personal injuries as a result of being struck by a vehicle operated by an individual who was driving his wife’s company car while allegedly under the influence of alcohol.

In the complaint, the plaintiff alleged negligence by the driver and various negligent entrustment type claims against the defendant driver’s wife and the company that owned the car.

According to the facts of the case, the wife had been given a car by her employer to use. The evidence also showed that the wife was considered to be on the job 24/7.

The jury handed down a verdict in favor of the plaintiff in the amount that was just shy of $13 million dollars. The jury assessed comparative negligence, as follows:

Defendant driver: 36%

Wife: 19%

Company: 45%

Notably, the jury did not assess any percentage of responsibility to the injured plaintiff. On appeal, the parties agreed that the plaintiff did not, in any way, contribute to the happening of the accident.

At the trial court level, once the verdict was handed down by the jury, the plaintiff, in an excellent strategic move to try to get the verdict paid by a deep pocket defendant, filed a motion to mold the verdict. The plaintiff’s motion requested the court to mold, or modify, the verdict by adding the percentage of responsibility assessed by the jury to the wife (19%) with the percentage of responsibility assessed to the wife’s employer (36%), such that it would appear that over 60% of the verdict had been assessed to the deep pocket employer defendant.

The innovative claim by the plaintiff was that, since the employer was vicariously liable for the actions of the wife, i.e., its employee, then those percentages of liability should be combined as one sum.

The plaintiff then argued that, under such a scenario, since the employer defendant would then be on the hook for over 60% of the verdict under the application of the Fair Share Act, the plaintiff should then be entitled to recover all of the nearly $13 million dollar verdict from that deep pocket employer defendant.

As noted, the trial court denied the plaintiff’s motion to mold the verdict. This appeal then ensured.

The Appeal

On appeal, the Pennsylvania Superior Court that the defendant employer that owned the company car that the defendant driver was driving was jointly and severally liable for the entire award because the 19% liability of the wife should have been added to the 45% responsibility assess to the defendant employer under the vicarious liability theory, which would put the c company at a percentage over the 60% limit of the Fair Share Act for holding a defendant jointly and severally liable.

In other words, the appellate court accepted the plaintiff’s argument that the wife’s negligence should be imputed to the company’s negligence because the wife-employee was acting within the scope and course of her employment with the company at the time of the accident. As such, the court accepted the plaintiff’s argument that the company should be held to be vicariously liable for the wife’s alleged negligence. The Superior Court reversed and remanded the case to the trial court for further proceedings with regard to a molding of the verdict.

The above decision represented the holding of the court in this case on the responsibility of the defendant owner. Then, in the latter part of its lengthy opinion the Pennsylvania Superior Court went further and reviewed other issues it had with the Fair Share Act.

Since this additional analysis by the Superior Court on the Fair Share Act comes after the court decided the issue before it, this analysis is arguably dicta. Under the law, dicta is statements or commentary made by a judge that is not a necessary part of the reasoning behind a judge’s holding or decision. Such commentary is not considered to be binding law.

More specifically, the Superior Court went on to note that, “assuming arguendo,” or assuming for the sake of argument, that the defendant employer was not vicariously liable for the action of the wife and those defendants were instead required to be treated separately, the Fair Share Act would not have applied because the act only applies to cases in which the plaintiff’s comparative negligence is an issue in the case, that is, where the plaintiff is assessed a percentage of responsibility for causing his or her own accident.

The court in Spencer v. Johnson noted that, in its reading of the Fair Share Act, the plain language of the act does not address or cover scenarios where there is no allegation that a plaintiff was negligent or in any way responsible for his own injuries.

In the opinion, the court also reasoned that there is no indication that the Legislature intended to make changes to the concept of joint and several liability in cases where a plaintiff has not been found to be comparatively negligent. In other words, the court noted that, in cases involving an innocent plaintiff, the “old” 1% rule of joint and several liability of responsible defendants should apply—that is, in a case where a plaintiff is 0% responsible, any defendant found at least 1% responsible should have to pay the entire verdict.

The court in Spencer v. Johnson noted that because the facts in Spencer did not involve a comparatively negligent plaintiff, the court, as an alternative basis, reasoned that it would have declined to apply the Fair Share Act and concluded that defendant wife (employee) and the defendant employer were jointly and severally liable for the plaintiff’s injuries.

The Debate Begins

It is noted that, before this decision could be reviewed any further by any other appellate court, the case was settled. As such, this decision remains on the books as published, precedential case law and leaves plaintiffs and defense attorneys to debate on whether the portion of the decision addressing the Fair Share Act is binding law or just nonbinding dicta or an advisory opinion by only two Superior Court judges where the third judge assigned to the case sat out of the decision-making process.

Some commentators (and likely all plaintiffs attorneys) read the portion of the opinion on the scope of the Fair Share Act to suggest that, where there is no finding of comparative negligence on the plaintiff, the Fair Share Act does not apply and the case reverts back to the old joint and several law under which a plaintiff could recover the verdict against any defendants that are found liable regardless of their percentage of liability assessed by the jury, i.e., a return to the days where a defendant could be made to pay the entire verdict even if that defendant was only found to be 1% responsible.

Defense counsel and carriers have a valid basis upon which to argue that this part of the opinion appears to be nonbinding dicta and may be considered to be more in the form of an advisory opinion by the Superior Court on the scope and reach of the Fair Share Act.

Regardless, in the case of Spencer v. Johnson, the Pennsylvania Superior Court voiced an opinion on this important issue that may be heeded by some courts in the future at least as guidance on the question presented or rejected by other courts as nonbinding dicta or a nonbinding advisory opinion.

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

Copyright 2021. ALM Media Properties, LLC. All rights reserved.

Corrected Link to Fair Share Act Decision by the Pennsylvania Superior Court

Here is a corrected LINK to the Fair Share Act decision highlighted in yesterday's Tort Talk blog post, that being the case of Spencer v. Johnson, 2021 Pa. Super. 48 (Pa. Super. March 18, 2021 Panella, P.J., McLaughlin, J., McCaffery, J.)(Op. by Panella, P.J.).

I apologize for any confusion or consternation.

UPDATE:  It has been reported that this case settled without further appellate review.

The Pennsylvania Superior Court Issues a Largely Advisory Opinion on the Fair Share Act

The Pennsylvania Superior Court recently issued a notable decision with respect to the Fair Share Act. Although wordy and filled with dicta, the decision warrants a read-through for its review of the Act.  The decision is also considered by some to only be an advisory opinion given that only two of the three judges assigned to the case weighed in on the decision.

In the case of Spencer v. Johnson, 2021 Pa. Super. 48 (Pa. Super. March 18, 2021 Panella, P.J., McLaughlin, J., McCaffery, J.)(Op. by Panella, P.J.), a plaintiff pedestrian alleged personal injuries as a result of being struck by a vehicle operated by an individual who was driving his wife's company car while allegedly under the influence of alcohol.

In the Complaint, the plaintiff alleged negligence by the driver and various negligent entrustment type claims against the defendant driver's wife and the company that owned the car.

The jury handed down a verdict in favor of the Plaintiff in the amount that was just shy of $13 million dollars. The jury assessed comparative negligence, as follows:

Defendant driver: 36%

Wife: 19%

Company: 45%

With regards to the application of the Fair Share Act, the court held that the Defendant Company that owned the company car that the Defendant driver was driving was jointly and severally liable for the entire award because the 19% liability of the wife should be added to the 45% of the company under a vicarious liability theory, which put the Company at a percentage over the 60% limit of the Fair Share Act for holding a defendant jointly and severally liable.

In other words, the appellate court accepted the Plaintiff's argument that the wife's negligence should be imputed to the Company's negligence because the wife-employee was acting within the scope and course of her employment with the Company at the time of the accident. As such, the Court accepted the Plaintiff's argument that the Company should be held to be vicariously liable for the wife's alleged negligence. The Superior Court reversed and remanded the case to the trial court for further proceedings with regard to a molding of the verdict.

The Superior Court also went on to note that, assuming for the sake of argument, that the Company was not vicariously liable for the action of the wife and those defendants were instead required to be treated separately, the Fair Share Act would not have applied because the Act only applies to cases in which the plaintiff’s comparative negligence is an issue in the case. See Op. beginning on p. 48.  

Some read this portion of the Opinion to suggest that, where there is no finding of comparative negligence on the Plaintiff, the Fair Share Act does not apply and the case reverts back to the old joint and several law under which a Plaintiff could recover the verdict against any defendants that are jointly and severally liable regardless of their percentage of liability assessed by the jury, i.e., a return to the days where a defendant could be made to pay the entire verdict even if that defendant was only found to be 1% responsible.

This part of the Opinion appears to be dicta and may be considered to be more in the form of an advisory opinion by the Superior Court on the scope and reach of the Fair Share Act.  Regardless, the Court has voiced an opinion on this issue that may be heeded by other courts in the future at least as guidance on the question presented.

Anyone wishing to review this decision may click this LINK.


I send thanks to Attorney Peter J. Faben of the Lancaster, PA law firm of Barley Snyder for bringing this case to my attention.

UPDATE:  It was reported that this case settled without further appellate review.