Superior Court Erodes Pennsylvania’s Fair Share Act


By: Erin Lamb

In 2011, Pennsylvania enacted the “Fair Share Act,” Senate Bill 1131. The bill substantially limited the applicability of joint and several liability in civil cases. There is no question that it was the goal of the legislature and then-Gov. Corbett for the bill to do exactly that. As enacted and as applied since it went into effect, the Act rendered individual defendants who were found to be less 60% liable responsible only for their share of damages. (Individual defendants who were found to be 60% liable or more remained subject to joint and several liability.)

Now, a two-member panel of Pennsylvania’s intermediate appellate court has thrown this application of the Act into question. The opinion written by Judge Panella and joined by Judge McCaffery in the matter of Spencer v. Johnson, et al. (2040 EDA 2019) opened the door to interpreting the Act in such a way that it only applies when there is a finding that the Plaintiff is comparative negligent.

The Spencer opinion adopts the rationale that in the absence of a finding that Plaintiff is comparatively negligent, joint and several liability remains the law of the land. This theory deduces that because the Act addresses situations where a plaintiff is found more than 50% negligent (Plaintiff barred from recovery) and where a single Defendant is more than 60% negligent (joint and several liability applies), but does not address situations where a Plaintiff is not found negligent, that the Act is only intended to apply to when a Plaintiff is found comparatively negligent.

 The promotion of this rationale was not germane to the subject issues on appeal, suggesting that sections of the Court were eager to place this rationale front and center for consideration. The interpretation has great consequences for any matter where Plaintiffs are rarely, if ever, found negligent, such as medical malpractice claims.

The appellees have already applied for reargument en banc before the Superior Court, with pending applications for leave to file amicus briefs filed by no fewer than 23 industry groups and special interest groups. The Court’s decision is due June 1, 2021.

For more information, please contact Erin Lamb at