                     [J-10A-2019 and J-10B-2019] [MO: Mundy, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT


    WILLIAM C. ROVERANO AND                      :   No. 26 EAP 2018
    JACQUELINE ROVERANO, H/W,                    :
                                                 :   Appeal from the Judgment of Superior
                      Appellants                 :   Court entered on December 28, 2017
                                                 :   at No. 2837 EDA 2016 affirming in
                                                 :   part, reversing in part and remanding
               v.                                :   the Order entered on July 27, 2016 in
                                                 :   the Court of Common Pleas,
                                                 :   Philadelphia County, Civil Division at
    JOHN CRANE, INC. AND BRAND                   :   No. 1123 March Term, 2014.
    INSULATIONS, INC.,                           :
                                                 :   ARGUED: March 6, 2019
                      Appellees                  :

    WILLIAM ROVERANO,                            :   No. 27 EAP 2018
                                                 :
                      Appellant                  :   Appeal from the Judgment of Superior
                                                 :   Court entered on December 28, 2017
                                                 :   at No. 2847 EDA 2016 affirming in
               v.                                :   part, reversing in part and remanding
                                                 :   the Order entered on July 27, 2016 in
                                                 :   the Court of Common Pleas,
    JOHN CRANE, INC.,                            :   Philadelphia County, Civil Division at
                                                 :   No. 1123 March Term, 2014.
                      Appellee                   :
                                                 :   ARGUED: March 6, 2019


                                  CONCURRING OPINION

JUSTICE WECHT                                             DECIDED: February 19, 2020

                                            I.

        I agree with the Majority that nothing in the Fair Share Act, 42 Pa.C.S. § 7102

(“FSA”),1 signals the General Assembly’s intent to displace the fundamental principle that


1     Act of April 28, 1978, P.L. 202, No. 53, § 10, as renumbered and amended,
42 Pa.C.S. § 7102 (“Comparative negligence”).
one cannot apportion financial responsibility disparately among defendants when they

are found strictly liable rather than negligent, but rather must allocate liability per capita.

See Baker v. ACandS, 755 A.2d 664, 669 (Pa. 2000). The only coherent way to assign

unequal shares of liability among multiple defendants is to assess relative

blameworthiness, and that leads inevitably to considerations indistinguishable from fault.

But this Court steadfastly has eschewed fault-based analysis in strict liability.

       As this Court has explained:

       [T]he tortious conduct at issue [in strict liability] is not the same as that found
       in traditional claims of negligence and commonly associated with the more
       colloquial notion of “fault.” In this sense, introducing a colloquial notion of
       “fault” into the conversation relating to strict product liability in tort detracts
       from the precision required to keep this legal proposition within rational
       bounds.

Tincher v. Omega Flex, Inc., 104 A.3d 328, 400 (Pa. 2014). Liability simply cannot be

allocated differently among several strictly liable defendants, at least in cases involving

an indivisible injury like asbestos-related cancer, without resort to some arbitrary rubric

inconsistent with the animating theory of strict liability.

       I find it telling that, despite the most recent amendment to the FSA’s2 sweeping

overhaul of liability exposure in multiple-defendant cases, and despite its nominal

introduction of strict liability into 42 Pa.C.S. § 7102, Section 7102 retained the title,

“comparative negligence.” With this continuing reference to negligence, the legislature

implied that “fault” continues to gird the newly prescribed allocative inquiry.3 Importantly,

the General Assembly amended this section against a framework in which joint and


2      See Act of June 28, 2011, P.L. 78, No. 17, § 1.
3     We may consider titles of statutory provisions to aid in statutory construction,
although titles do not control our interpretation. See 1 Pa.C.S. § 1924.


                     [J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 2
several liability had functioned not as the final word on multiple defendants’ respective

degrees of responsibility, but rather as a mechanism to hasten a plaintiff’s full recovery,

leaving jointly liable defendants to litigate separately their relative measures of

responsibility in a contribution action.   See generally Baker, supra.      With the 2011

amendment, the General Assembly effectively folded the allocative function formerly

served by contribution actions into the trial at which the defendants’ liability and the

plaintiff’s damages were litigated. In doing so, the legislature also denied plaintiffs the

option of recovering from any one defendant more than that defendant’s share of liability.

This much can be gleaned from the statute itself and is undisputed. What cannot be

gleaned from the text of the statute is the legislature’s clear intent to abrogate the

common-law principle that strict liability is not amenable to disparate apportionment when

more than one defendant is found strictly liable for a plaintiff’s injury. As the Majority

persuasively explains, we should not infer that the legislature intended to supplant

established common law without clearer evidence than we find in Section 7102. See Maj.

Op. at 20-24; see also In re Rodriguez, 900 A.2d 341, 344 (Pa. 2003) (“Under [the

Statutory Construction] Act an implication alone cannot be interpreted as abrogating

existing law. The legislature must affirmatively repeal existing law or specifically preempt

accepted common law for prior law to be disregarded.”).

       The Chief Justice, in his Concurring and Dissenting Opinion, finds support for the

contrary view in a subtle shift in language from the relevant provision of former

Section 7102, which directed apportionment based upon the defendant’s relative “causal

negligence,” 42 Pa.C.S. § 7102(b) (repealed), to that of present Section 7102, which

directs allocation based upon the defendant’s relative “liability.”            42 Pa.C.S.




                    [J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 3
§ 7102(a.1)(1).   The Chief Justice views this alteration as indicative of the General

Assembly’s intent to subject strict liability claims to the apportionment approach. See

Conc. & Diss. Op. at 2 n.1. Yet, his analysis disregards the divergent connotations of

negligence liability and strict liability. As set forth at length in Tincher, strict liability is

effectively absolute. It is a species of the common law of torts informed more by principles

of warranty and social justice than by notions of fault. Strict liability has long established

a duty, independent of fault in the common sense, informed by “[t]he hand of history, our

ideas of morals and justice, the convenience of administration of the rule, and our social

ideas as to where the loss should fall.” William L. Prosser, Palsgraf Revisited, 52 MICH.

L. REV. 1, 14-15 (1953).

       In strict liability, the relevant inquiry is binary: if the defendant put the product that

caused the plaintiff’s harm into the stream of commerce, and if that product was defective

under one of the relevant rubrics,4 then the defendant is liable. Not a lot liable. Not a

little liable. Just liable. In this context, disparate apportionment for a single injury can

only be arbitrary, if not utterly nonsensical. As the Majority explains, nothing in the 2011

amendments to the FSA preempts the conclusion that the General Assembly understood

that allocation in strict liability actions would continue to be per capita as our case law

requires. The fine-grained distinction upon which the Chief Justice relies falls well short

of the affirmative steps we typically require of the legislature before we determine that it

intended to abrogate established common law.




4        In Tincher, we established at length that the plaintiff may seek to establish strict
liability on the “consumer expectations” and/or “risk-utility” theory. See Tincher, 104 A.3d
at 406-07.


                     [J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 4
        I read the General Assembly’s use of the term strict liability in the FSA as

embodying all of the various properties we have ascribed to that form of liability, including

the rejection of the fault-based principles necessary to apportion liability in a non-arbitrary

fashion.5 Its appearance in Section 7102 is not without effect, even absent subjecting

strict liability to disparate apportionment. By adding strict liability to Section 7102, the

General Assembly made clear that it intended to eliminate joint and several liability for

strict liability cases as well as for other negligence actions. But in providing that strict

liability would apply to defendants severally rather than jointly, the General Assembly

neither said nor clearly implied that it intended to displace per capita apportionment in

strict liability cases.

        I also agree with the Majority that there is no principled way to apportion relative

liability in asbestos cases.     In determining what constitutes substantial causation in

asbestos cases, we have rejected the view that any one causative exposure can be

identified where a party with asbestos-related disease was subject to multiple exposures.

See Rost v. Ford Motor Co., 151 A.3d 1032, 1045-46 (Pa. 2016). In this case, as in



5        Even if the legislature intended to transmogrify the connotation of “strict liability” to
embody fault, I would remain deeply skeptical. The General Assembly certainly may
modify the common law by statute. It could perhaps abrogate strict liability entirely and
replace it with something that incorporates some variation of fault, provided it does so in
conformity with the general requirements of Article I, Section 11, of the Pennsylvania
Constitution, which requires that a “remedy by due course of law” be available for any
injury to one’s “lands, goods, person or reputation.” Cf. Yanakos v. UPMC, 218 A.3d
1214, 1240-41 (Pa. 2019) (Wecht, J., dissenting) (“Article I, Section 11 should be
understood to impose some outer limit on the General Assembly’s power to enact
legislation that curtails or eliminates a common law cause of action.”). But merely calling
something strict liability does not make it so. “You can call a camel an elephant but that
won’t make its hump disappear. Labels do not change substance.” Houston Gen. Ins.
Co. v. Brock Const. Co., 246 S.E.2d 316, 319 (Ga. 1978) (Undercofler, P.J., concurring).
Strict liability that relies upon fault is no longer strict in any intelligible sense.


                      [J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 5
others, the medical experts agreed that “there is no scientific basis to determine which

asbestos-containing product caused Mr. Roverano’s lung cancer.” See Maj. Op. at 26.

The injury is indivisible; it cannot be separated into constituent parts. Necessarily, then,

any attempt to deem one defendant more responsible than another—whether as a matter

of “fault” or some other nominal allocative metric—would be arbitrary. Our law is clear

that to invite or allow juries to make such arbitrary distinctions disserves the interests of

justice. See id. (discussing Martin v. Owens-Corning Fiberglass Corp., 528 A.2d 947

(Pa. 1987)). Where expert evidence cannot furnish a scientific basis upon which to

allocate relative liability, any apportionment by the jury must stem only from conjecture.

See id. A “[r]ough approximation,” the Martin Court explained, “is no substitute for justice.”

Martin, 528 A.2d at 950.

       The Chief Justice’s answer to the sheer impossibility of principled apportionment

is unconvincing. In disputing the Majority’s reliance upon Martin’s rejection of rough

approximations, he observes that “courts have come to accept abstract assessments of

increased risk as proxies for traditional substantial-factor causation,” because asbestos

cases “involv[e] frequently undocumented, unquantified, and sometimes small exposures

to many different sources of asbestos occurring long ago.” Conc. & Diss. Op. at 4. In so

many words, the Dissent suggests that, because “‘rough approximation’ is at best a

generous characterization for what occurs on a routine basis in asbestos-related trials,”

one more “rough approximation” based upon relative risk won’t hurt. Id.

       We have adopted the “frequency, regularity, and proximity test” for substantial

causation as a practical means to protect manufacturers from liability when the plaintiff’s

exposure to their products was de minimis. The test also ensures that a plaintiff will be




                    [J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 6
able to recover where he can establish that his exposure to a given manufacturer’s

product was more than de minimis. See Rost, 151 A.3d at 1043. The Chief Justice’s

proposed resort to a “risk-based” assessment suggests a reliance upon similar

considerations for purposes of estimating comparative liability among multiple parties.

However, the frequency, regularity, and proximity rubric is merely a practical framework

for the fundamentally binary inquiry regarding substantial causation in multiple-exposure

cases. It is not a suitable method for apportioning liability disparately among multiple

defendants as to whom the plaintiff’s exposure satisfies the test, approximately or

otherwise. Applying the frequency, regularity, and proximity test in the former sense does

not require a “rough approximation” so much as it does the satisfaction of a threshold—

another fundamentally binary question. Only in applying it to an allocation of liability does

it truly become the “rough approximation” that the Majority is right to reject. Thus, I join

the Majority’s conclusion that the prevailing per capita method of allocation must continue.

                                               II.

       I also join the Majority’s determination that the Superior Court correctly concluded

that settling bankruptcy trusts must be included on the verdict sheet so that the jury may

determine their factual liability in furtherance of a fair (per capita) allocation of liability

among responsible parties.

       As has been noted in the past, the rejection of fault-based principles in strict liability

in favor of a warranty-inflected basis for liability, combined with traditional principles of

joint liability, risked burdening certain defendants unfairly.       But with the 2011 FSA

amendments, the General Assembly broadly eliminated traditional joint liability in favor of

allocating liability among tortfeasors in proportion to their relative responsibility for the




                    [J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 7
plaintiff’s injury, so that no defendant is even temporarily responsible to the plaintiff for

more than that defendant’s particular share of liability.

       In furtherance of that goal, Subsection 7102(a.2) calls for the submission of settling

defendants or other settling parties to the jury to enable it to resolve “the question of

liability” in furtherance of “apportioning liability.” 42 Pa.C.S. § 7102(a.2). The point of

apportionment generally is to ensure that no named defendant pays more than its “fair

share” of the verdict—in the context of strict liability, calculated per capita among all

individuals and entities whose products are deemed to have substantially caused the

plaintiff’s harm. Notably, the liability even of those who settle with plaintiffs is not a

foregone conclusion, and many releases executed in tandem with settlements disclaim

any admission of liability. In the context of per capita apportionment, then, submitting

settling parties to the jury serves only to enable the jury to determine how many parties

caused the plaintiff’s harm, enhancing the accuracy of the head count comprising the

denominator of the equation by which a liable defendant’s share of liability is calculated.

With every settling party that the jury deems liable, the share of the verdict attributable to

each non-settling, liable defendant is reduced.

       The FSA specifically provides that—just for purposes of apportioning liability—“the

question of liability of any defendant or other person who has entered into a release with

the plaintiff with respect to the action and who is not a party shall be transmitted to the

trier of fact upon appropriate requests and proofs by any party.” Id. JCI and Brand argue

that the trial court erred in excluding certain bankruptcy trusts that had settled with the

Roveranos, because such trusts qualify as “other person[s] who [have] entered into a

release with the plaintiff with respect to the action” for purposes of apportionment of




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liability. Id. In pretrial proceedings, the trial court granted the Roveranos’ request to

exclude such parties. At the time of the request, the Roveranos acknowledged only

having filed claims with certain specific trusts, but did not indicate whether they had

reached terms or executed any settlement agreements with them. The trial went to verdict

without the inclusion of any trusts.

       In their post-trial motions, JCI and Brand both asserted that the trial court erred in

refusing to include settling bankruptcy trusts on the verdict sheet, but focused their

argument on Johns-Manville/Manville Asbestos Trust (“Manville”), which settled with the

Roveranos only after JCI filed a Joinder Complaint against Manville. See JCI Post-Trial

Motion at 13-14 ¶ 17; Brand Post-Trial Motion ¶¶ 20-21.            As for the other trusts,

Defendants only asked the trial court to mold the verdict to reduce it by the amounts the

Roveranos had recovered or would recover from bankruptcy trusts. See JCI Post-Trial

Motion at 5-6 ¶ 6; Brand Post-Trial Motion ¶ 16. Neither suggested in their motions that

any settling trusts (other than Manville) should have been submitted to the jury for

purposes of determining their liability on an equal footing with the remaining defendants

and Manville.

       In rejecting these arguments, the trial court did not specifically distinguish Manville

from the other bankruptcy trusts at issue. It simply explained:

       The court denied this motion at a pre-trial hearing on the grounds that these
       entities had already filed for bankruptcy prior to the institution of suit on
       behalf of the plaintiff. Under these circumstances, it would have been unfair
       to include the bankrupts on the verdict sheet. See Ottavio v. Fibreboard
       Corp., 617 A.2d 1296 (Pa. Super. 1992) (en banc), and Ball v. Johns-
       Manville Corp., 625 A.2d 650 (Pa. Super. 1993).

       Closely related to this issue is the request by the defendants in their post-
       verdict motions for a set-off for any financial compensation [the Roveranos]
       may receive from multiple bankruptcy trusts. At this time the [c]ourt was
       uncertain what, if any, payments [the Roveranos] has [sic] received from


                    [J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 9
       any of these trusts and the court is unsure what claims were made or will
       be made in the future. Consequently it would be impossible for the court to
       calculate any set-off, even assuming the plaintiff has made such application.

T.C.O. at 11 (citations and capitalization modified).6

       The Superior Court, for its part, analyzed the relevant questions more

comprehensively. That court ruled that the jury should have been “permitted to consider

evidence of any settlements by the Roveranos with bankrupt entities in connection with

the apportionment of liability” under Subsection 7102(a.2). Roverano v. John Crane, Inc.,

177 A.3d 892, 909 (Pa. Super. 2017).         The Superior Court noted that Subsection

7102(a.2) makes no explicit exception for “settling persons who are bankrupt.” Id. at 910.

The court then rejected the trial court’s reliance upon the Superior Court’s pre-

amendment decisions in Ottavio and Ball, noting that Subsection 7102(a.2) expressly

provides that evidence submitted in furtherance of allocating liability among settling non-

parties is inadmissible in any other proceeding. Moreover, because the amended FSA

obviates the need for jointly liable defendants to seek contribution, adding settling

bankruptcy trusts to the verdict sheet creates no apparent risk of the contribution actions

that informed the Superior Court’s rulings in Ottavio and Ball. Accordingly, the Superior


6      In so describing the state of the record, the court either overlooked or disregarded
an exhibit the Roveranos had appended to their response to JCI’s and Brand’s post-trial
motions, which identified seven trusts, including Manville, with which they had reached
terms and the amount of money they had received from each. See Plaintiffs’ Brief in
Opposition to John Crane’s Motion for Post-Trial Relief, Exh. K. Arguably, the Roveranos
should be held to these admissions here. See generally Dale Mfg. Co. v. Bressi, 421
A.2d 653, 655 (Pa. 1980) (holding that admissions made in a given proceeding are
binding within that proceeding). Consequently, when the Roveranos indicated by
attachment to their post-trial motion that they had settled with seven bankruptcy trusts
and provided the amounts received in connection with each, they appeared to confirm the
existence of the settlements and the settlements’ values arguably were established.
Whether this is the case, however, is for the trial court to determine in the proceedings to
follow our remand.


                   [J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 10
Court correctly reversed the trial court’s ruling and remanded for a new trial on

apportionment that took into account the settling bankruptcy trusts.

       The Majority provides a useful review of the role bankruptcy trusts serve in

resolving the long tail of belatedly manifesting asbestos-related disease, a mechanism

that traces its origins to In re Johns-Manville Corp., 36 B.R. 743 (Bankr. S.D.N.Y. 1984),

and later was codified in the Bankruptcy Code, itself. See Maj. Op. at 34-35. As the

Majority explains:

       The United States Congress enacted Bankruptcy Code Section 524(g),
       11 U.S.C. § 524(g), “which statutorily validates the trust and channeling
       injunction mechanisms pioneered in the Manville case.” [Elihu Inselbuch,
       et al., The Effrontery of the Asbestos Trust Transparency Legislation Efforts,
       MEALEY’S LITIGATION REPORT: ASBESTOS, vol. 28, #2, Feb. 20, 2013, at 4.]
       Under this statutory scheme, a bankruptcy court’s confirmation of a
       Chapter 11 asbestos debtor’s reorganization plan creates a trust for the
       payment of the debtor’s present and future liability and an injunction that
       channels post-confirmation claims to the trust. Id. This enables the
       Chapter 11 debtor to reorganize and remain commercially viable while the
       trust administers asbestos personal injury claims. Id. at 4-5. A “trust
       distribution procedures” (TDP) document, which the bankruptcy court has
       approved, controls the administration of the trust. Id. at 5. “The trust has
       fixed assets that will be insufficient to pay the full historic settlement value
       of all claims; it therefore sets a payment percentage, and each present and
       future claimant is paid the liquidated value of his or her claim discounted by
       the payment percentage.” Id.

Maj. Op. at 35 (footnote omitted).

       The Majority next explains that Subsection 7102(a.2) allows apportionment to

either of two settling entities: defendants, or any non-party that “has entered into a release

with the plaintiff with respect to the action.” See id. at 36 (quoting 42 Pa.C.S. § 7102(a.2)).

This case involves examples of each, the Majority observes, because JCI filed a joining

complaint that made Manville a party to these proceedings, and the Roveranos settled

their claims with Manville before the case went to verdict. Id. The Roveranos separately




                     [J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 11
settled their claims with at least six other non-party bankruptcy trusts that were not named

defendants. See supra n.6.

        Subsection 524(g)(1)(B) confers discretion upon the Bankruptcy Court to fashion

a case-appropriate TDP and to enter related orders pertaining to the administration of a

bankruptcy trust. It also precludes a “legal action for the purpose of directly or indirectly

collecting, recovering, or receiving payment or recovery with respect to any claim or

demand that, under a plan of reorganization, is to be paid in whole or in part by a trust . . .,

except such legal actions as are expressly allowed by the injunction, the confirmation

order, or the plan of reorganization.” 11 U.S.C. § 524(g)(1)(B). But no such claim is in

the offing in this case or others like it.

        The statute says nothing that disallows including a settling bankruptcy trust on a

verdict sheet strictly for purposes of determining its liability in furtherance of

apportionment affecting the exposure of other non-bankrupt defendants, where doing so

would not constitute an action “for the purpose of directly or indirectly collecting,

recovering, or receiving payment or recovery with respect to any claim or demand that . . .

is to be paid . . . by a trust.” Id. To the contrary, the allocation scenario at issue arises

only when the trust in question has already remitted payment and been released from

further liability.

        The FSA provides that, strictly for purposes of apportioning liability, any person

who has entered into a release with the plaintiff “shall be transmitted to the trier of fact

upon appropriate requests and proofs by any party.” 42 Pa.C.S. § 7102(a.2) (emphasis

added). Not only is this language intentionally inclusive, the legislative intention it reveals

is reinforced by the lone exclusion it allows for employers who have immunity under the




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Workers’ Compensation Act. Id. This Court has held that the inclusion in a statute of an

express exception implies the exclusion of others. See Castellani v. Scranton Times,

L.P., 956 A.2d 937, 951 (Pa. 2008) (“The Shield Law provides for one exception, . . . and

we are not at liberty to create others that the Legislature, in its wisdom, chose not to

include in the text of the statute.”). Thus, if settling bankruptcy trusts are to be excluded

from the verdict sheet as a matter of law, the source of the exclusion must lie elsewhere.

But the only exclusionary sources the trial court and the Roveranos consider in this regard

have no such effect.

       Ottavio and Ball hinged upon the risk of impermissibly exposing bankrupt parties

to contribution actions consequent to an allocation of liability to a party undergoing

bankruptcy proceedings. But the FSA obviates the need for such actions in asbestos

cases, and further provides that jury determinations pertaining to allocation may not be

used in any other proceeding. As the Majority also notes, Ottavio and Ball are inapposite

because the parties in this case are not parties whose bankruptcies are pending in the

Bankruptcy Court and subject to the automatic bankruptcy stay. Rather, the original

entities have been discharged from bankruptcy and the trusts created in connection with

that proceeding are governed by their own rules. See Maj. Op. at 37 n.25.7


7       This hints at a potential concern for another day. While language employed by the
parties and the courts throughout these proceedings has suggested that the relevant
question pertains to bankrupt entities and bankruptcy trusts alike, I have focused solely
upon established bankruptcy trusts because it is such trusts only that are at issue.
Whether the FSA requires (and whether it can require) the inclusion of parties subject to
pending bankruptcy proceedings is a discrete question that is not presented here.
Admittedly, the wording of our statement of the question presented suggests otherwise in
its reference to settlements “with bankrupt entities,” but the facts of this case do not
appear to involve any party in that status. Moreover, the language is confusing because
the bankruptcy trusts, as such, are not bankrupt.



                   [J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 13
       Moreover, nothing in Bankruptcy Code § 524(g)(1)(B) necessitates excluding

bankruptcy trusts from a verdict sheet for purposes of apportionment. Even where that

section applies, exclusion is necessary only when the action in question seeks some form

of collection from the trust in question. The parties, having settled their claims with the

trusts at issue, have no further claims to litigate. Absent a far clearer federal directive,

and without any evidence that applying the FSA to settling bankruptcy trusts interferes

with the administration of the Bankruptcy Code, to find that Subsection 524(g)(1)(B)

displaces the FSA conflicts with the principle that, “in discerning whether Congress

intended to preempt state law, there is a presumption against preemption.” Dooner v.

DiDonato, 971 A.2d 1187, 1194 (Pa. 2009) (emphasis in original).

       I agree with the Majority that FSA § 7102(a.2) requires “appropriate requests and

proofs” of liability before a settling bankruptcy trust may be submitted to a jury for

purposes of apportionment, and only upon such submissions may a jury be allowed to


       Relatedly, the Majority opines that, as a function of the channeling injunctions,
releases may be sought from, and liability for purposes of apportionment attributed to,
bankruptcy trusts rather than the original parties. Cf. Maj. Op. at 37 n.25. This view is
rooted in part on the basis that the original tortfeasors did “not ‘enter[] into a release’ with
the Roveranos and consequently cannot be apportioned liability because they do not
meet the conditions of Section 7102(a.2).” Id. I am not entirely persuaded of this latter
premise. The Roveranos appended one of the releases to its brief in this Court as
Appendix H. The release appears on the letterhead of “Armstrong World Industries, Inc.
Asbestos Personal Injury Settlement Trust.” While characterizing the Roveranos’ claims
as directed to the trust, the release nonetheless applies, by its terms, to relieve of future
claims not only the trust, but also “the Debtors, the Debtor’s Estates and the Reorganized
Debtors,” et al., Debtor having been defined elsewhere in the release as Armstrong World
Industries, Inc., itself. This may be pro forma and have little bearing upon the Majority’s
observation, depending on how the TDPs may inform the matter, but it counsels vigilance
in predicating any legal conclusions on the assumption that the original tortfeasors, having
exited bankruptcy, may have no part whatsoever in any strict liability proceedings, related
to apportionment or otherwise—subject, of course, to any preempting federal statutory
law or controlling federal court orders.



                    [J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 14
determine whether a settling party was liable for the plaintiff’s harm. But we granted

review to consider whether, not under what precise circumstances, settling bankruptcy

trusts may be included on a verdict sheet for purposes of apportionment.8 Because the

trial court precluded the submission of such proofs before trial commenced, it never had

cause to assess the adequacy of any proofs JCI and Brand might have secured through

discovery and submitted into evidence.

      In short, settling bankruptcy trusts may be included on a verdict sheet for purposes

of apportionment, provided that the party seeking to do so supplies the court with proof

of settlement and, separately, evidence of liability sufficient to establish a basis upon

which a jury may conclude that such liability should attach. Should the jury reach that

conclusion, the trust must be counted in dividing the verdict per capita. This conclusion

flows inexorably from the prevailing statutory language chosen by the General Assembly.

Any contrary ruling necessarily would flow from principles and procedures that the

legislature discarded when it enacted the 2011 amendments to the FSA.




8     Relative to this issue, this Court granted review on the following question:
      Whether, under this issue of first impression, the Superior Court
      misinterpreted the Fair Share Act in holding that the Act requires the jury to
      consider evidence of any settlements by the plaintiffs with bankrupt entities
      in connection with the apportionment of liability amongst joint tortfeasors?
Roverano v. John Crane, Inc., 190 A.3d 591 (Pa. 2018) (per curiam).


                  [J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 15
