Pennsylvania’s Fair Share Act (FSA), 42 Pa. CS Section 7102, was enacted in 2011 with the dual purpose of ensuring that defendants are only liable to pay their fair share of damages awarded under litigation with multiple defendants and to reduce joint and several liability. . In Roverano against John Crane, 226 A.3d 526 (Pa. 2020), however, the Pennsylvania Supreme Court has begun to erode the protection offered by the FSA, holding that liability should be allocated among strict liability defendants on a per capita basis. Following Roverano, the Pennsylvania Superior Court threatened to undermine FSA protections by suggesting in Spencer v. Johnson, 249 A.3d 529 (Pa. Super. Ct. 2021) that the FSA only applies if a claimant has been assigned a comparative degree of fault. Taken together, these two rulings paved the way for a reimposition of the per capita apportionment and joint and several liability regimes that the FSA was enacted to limit.
This article will tell you how from Roverano dependence on Azzarello-the precedent at the time to reinstate the per capita allocation among strict liability defendants opens the door to a Tincherdispute based on Pennsylvania apportionment method. It will also consider whether the Pennsylvania Superior Court’s analysis of the FSA in spencer suggests that the FSA will be found inapplicable to legally liable defendants.