J. A10014/17

                               2017 PA Super 415

WILLIAM C. ROVERANO AND            :             IN THE SUPERIOR COURT OF
JACQUELINE ROVERANO, H/W           :                  PENNSYLVANIA
                                   :
               v.                  :
                                   :
JOHN CRANE, INC. AND BRAND         :
INSULATIONS, INC.                  :
                                   :
APPEAL OF: BRAND INSULATIONS, INC. :
                                   :             No. 2837 EDA 2016

                       Appeal from the Order July 27, 2016
               In the Court of Common Pleas of Philadelphia County
                         Civil Division at No(s): No. 1123

WILLIAM C. ROVERANO                        :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                    v.                     :
                                           :
JOHN CRANE, INC.,                          :
                                           :
                          APPELLANT        :
                                           :     No. 2847 EDA 2016

                        Appeal from the Order July 27, 2016
               In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): March Term, 2014 No. 1123

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

OPINION PER CURIAM:                             FILED DECEMBER 28, 2017

      Appellants, John Crane, Inc., and Brand Insulations, Inc., appeal from

the July 27, 2016 Order denying Post-Trial Motions and entering Judgment in

favor of Appellees William and Jacqueline Roverano.       We affirm in part,

reverse in part, and remand for a new trial to apportion damages among the

tortfeasors.
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        We briefly summarize the relevant facts, as gleaned from the certified

record, as follows.

        Appellee William Roverano was employed at PECO from 1971 until his

retirement in 2001. As part of his employment, Mr. Roverano was exposed

to a variety of asbestos products over a ten-year period from 1971 until

1981.

        In November of 2013, Mr. Roverano was diagnosed with lung cancer in

both lungs. Despite extensive treatment, his prognosis is poor.

        On March 10, 2014, Mr. Roverano filed a Complaint against thirty

named defendants, averring that exposure to asbestos products attributable

to those defendants caused his lung cancer.1         In addition, Mrs. Roverano

made a claim for loss of consortium.

        Prior to trial, the trial court ruled that the Fair Share Act, 42 Pa.C.S. §

7102, did not apply to asbestos cases.

        At trial, the parties presented evidence that focused primarily on

Roverano’s exposure to Appellants’ products that contained asbestos and

whether such exposure caused Roverano’s lung cancer.               The thrust of

Appellants’ defense was that it was Roverano’s history of smoking that

caused his lung cancer and any exposure to Appellants’ products was

insignificant and could not have caused his lung cancer. In contrast,

1 More than a dozen of those named defendants had filed for bankruptcy. Of
the remaining named defendants, all but Appellants Crane and Brand settled
with the Roveranos prior to the jury’s verdict.



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Appellees’ experts opined that it was both his smoking and the exposure to

Appellants’ products that caused his lung cancer.

      After deliberating, the jury found in favor of Mr. and Mrs. Roverano

and against the Appellants as well as six of the eight other defendants. The

jury awarded $5,189,265 to Mr. Roverano and $1,250,000 to Mrs. Roverano.

      Appellants filed separate Motions for Post-Trial Relief. On July 27,

2016, the trial court denied Appellants’ Motions and entered judgment in

favor of the Roveranos. The trial court apportioned the judgment equally

among the eight defendants whom the jury determined to be tortfeasors. In

particular, the trial court entered separate judgments against Appellant

Crane and Appellant Brand each in the amount of $648,858 plus $29,604 for

delay damages for the verdict in favor of Mr. Roverano and $156,250 for the

verdict in favor of Mrs. Roverano.

      Appellants timely appealed.        The trial court did not order, and

Appellants did not file, a Statement of Errors Complained of on Appeal

pursuant to Pa.R.A.P. 1925(b).

      Although Appellants have filed separate briefs, the issues raised are

largely overlapping. We, therefore, paraphrase and re-number the collective

issues Appellants raised as follows:2


2 Appellant Crane also argues in one paragraph that we should reverse the
trial court because its errors are cumulative. Since Appellant does not
develop this argument or cite any law or references to the record to support
this argument, we find this argument waived. See J.J. DeLuca Co., Inc. v.



                                        -3-
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      1.    The trial court erred in defining “factual cause” in its
      instructions to the jury and in response to a written question
      from the jury.

      2. The trial court erred by denying Appellant Crane’s proposed
      Verdict Form that addressed whether Roverano’s injuries were
      caused by exposure to asbestos, or, as Appellant Crane
      maintains, smoking.

      3. The trial court erred by failing to provide the jury a Verdict
      Form that allowed them to determine whether Appellant Crane’s
      packing was defective in the absence of a warning.

      4. The trial court erred by allowing Roveranos’ experts to offer
      “each and every” or “whatever” asbestos exposure causation
      testimony in a case where Roverano did not have mesothelioma,
      asbestosis, or any other medical marker of asbestos exposure.

      5. The trial court erred when it refused to mold the verdict to
      account for named-defendants Georgia Pacific Cement and
      Hajoca Corporation.

      6. The trial court erred in failing to apply the Fair Share Act and
      erred specifically as follows:

         A. The trial court should have required the jury to
         apportion liability among the alleged tortfeasors; and

         B. The trial court should have included certain alleged
         tortfeasors on the verdict sheet, notwithstanding the fact
         that those alleged tortfeasors had filed for bankruptcy
         protection, or to mold the verdict to reflect settlement
         payments received from the bankruptcy estates of
         alleged tortfeasors

Appellant Crane’s Brief at p. 5-6; Appellant Brand’s Brief at p. 3.




Toll Naval Associates, 56 A.3d 402, 412 (Pa. Super. 2012) (citing
Pa.R.A.P. 2119).




                                     -4-
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Standard of Review

        Our standard of review on appeal is a clear abuse of discretion or an

error of law that controls the case:

        Our standard of review regarding a trial court's denial of a
        motion for a new trial is limited. The power to grant a new trial
        lies inherently with the trial court and we will not reverse its
        decision absent a clear abuse of discretion or an error of law
        which controls the outcome of the case.

Maya v. Johnson and Johnson, 97 A.3d 1203, 1224 (Pa. Super. 2014)

(citation omitted). When determining whether the trial court committed an

error of law controlling the outcome of the case, “our standard of review

is de novo, and our scope of review is plenary.” Fizzano Bros. Concrete

Prods., Inc. v. XLN, Inc., 42 A.3d 951, 960 (Pa. 2012).

        1. Factual Cause Jury Instructions

        Appellants argue that the trial court erred in defining “factual cause” in

its instructions to the jury and in response to a written question from the

jury.    In particular, Appellants argue that the “law requires a ‘but for’

causation standard for the definition of factual [causation], which was an

error of law that controlled the outcome of the case.” Crane’s Brief at 30.

        This Court reviews a challenge to jury instructions under the following

well-settled principles of Pennsylvania law.

        [O]ur standard of review when considering the adequacy of jury
        instructions in a civil case is to determine whether the trial court


                                       -5-
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      committed a clear abuse of discretion or error of law controlling
      the outcome of the case. It is only when the charge as a whole is
      inadequate or not clear or has a tendency to mislead or confuse
      rather than clarify a material issue that error in a charge will be
      found to be a sufficient basis for the award of a new trial.

      Further, a trial [court] has wide latitude in [its] choice of
      language when charging a jury, provided always that the court
      fully and adequately conveys the applicable law.

Phillips v. Lock, 86 A.3d 906, 916–917 (Pa. Super. 2014) (citation

omitted).

      In asbestos products liability cases, “Pennsylvania law requires that a

plaintiff prove two elements: “that the product was defective, and that the

defect was the substantial factor in causing the injury.” Rost v. Ford

Motor Company, 151 A.3d 1032, 1037 n.2 (Pa. 2016) (citations omitted;

emphasis added.). When a plaintiff was exposed to more than one product

that contained asbestos, the jury, when applying the “substantial factor”

test, should consider the “frequency, regularity and proximity” of the

plaintiff’s exposure to each asbestos product.    Gregg v. V-J Auto Parts

Co., 943 A2d 216 (Pa. 2007).      This assessment requires a “focus on the

precise nature of plaintiff’s exposure to the defendant’s product, not on

other asbestos containing product.” Rost, 151 A.3d at 1048 (emphasis in

original).

      When a jury focuses on the defendant’s product, the jury should

consider the plaintiff’s exposure to each defendant’s product “was on the one

hand, a substantial factor or a substantial cause or, on the other hand,



                                     -6-
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whether the defendant’s conduct was an insignificant cause or a negligible

cause.” Id. at 1049 (quoting Ford v. Jeffries, 379 A.2d 111, 114 (Pa.

1977)).

        The Supreme Court concluded that it has never “insisted that a

plaintiff exclude every other possible cause for his or her injury and in fact,

we have consistently held that multiple substantial causes may combine and

cooperate to produce the resulting harm to the plaintiff.”     Rost, supra at

1051.

        Finally, the Rost Court noted with approval the analysis in Tragarz v.

Keene Corp., 980 F.2d 411 (7th Cir. 1992), adopted by Gregg, supra at

226, that rejected any notion that the test of “frequency, regularity and

proximity” requires a comparative analysis of different exposures to

asbestos and instead made clear that the focus must be on the level of

exposure to the defendant’s product. Rost, supra at 1050 n.13. Using this

analysis, our Supreme Court rejected a “but for” causation analysis.

        Suppose a plaintiff shows that the amount of exposure that it
        received from defendant’s A’s asbestos product was alone
        sufficient to cause mesothelioma. If such a plaintiff was not
        exposed to any other products, the plaintiff would have sufficient
        evidence to support a finding that but for exposure to the
        defendant A’s product, the plaintiff would not have gotten ill. On
        the other hand, under a [comparative approach], if the plaintiff
        was exposed to numerous other asbestos products, the plaintiff
        might not be able to prove cause in fact in a suit against
        defendant A because the same exposure to defendant A’s
        product might not be substantial in comparison to the exposure
        to the other products. Such a result does not promote the
        purposes of the substantial factor test, which is aimed at



                                      -7-
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      alleviating the inequities that result when applying the but for
      test in a multi-defendant case, not at creating such inequities.

Id., quoting Tragarz, 980 F.2d at 425 (emphasis omitted).

      Based on our review of the foregoing precedential authority, we

conclude that the trial court in the instant case properly rejected Appellant’s

request for a “but for causation” jury charge. The Pennsylvania Supreme

Court has clearly rejected such a standard for causation and requires, when

addressing a situation in which a plaintiff is exposed to more than one

asbestos containing products, that the jury determine whether the plaintiff’s

exposure to each defendant’s product was “frequent, regular and proximate”

to determine whether such exposure was a substantial factor in causing the

plaintiff’s injury.

        Appellants further argue that the “trial court’s instruction did not

provide a sufficient and correct legal basis to guide the jury.” Crane’s Brief at

33.

      First, while explaining the Verdict Sheet, the court stated:

      The first question I said deals with exposure to the particular
      product of the defendant. Now, these are the elements the
      plaintiff has to prove that exposure. Number one, was the
      plaintiff exposed to the product of the defendant, did it contain
      asbestos, was the plaintiff exposed to the asbestos fibers of that
      particular defendant on a regular frequent and proximate basis.

      Now, the second question deals with whether these products
      manufactured, distributed, or supplied by the individual
      defendants was a factual cause in bringing about the plaintiff’s
      lung cancer. In other words, did this exposure, if you find it, was
      it a factual cause in bringing about his lung cancer, did the



                                      -8-
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      plaintiff suffer from an asbestos-related disease, the lung cancer,
      that is, was it caused by the exposure.

N.T., 4/13/16, at 336-37; RR 687a.

      After the attorneys made their closing arguments, the court explained

to the jury the need for Mr. Roverano to establish that he was exposed to

the asbestos fibers that Appellants had manufactured, distributed or supplied

on a “regular, frequent and proximate basis.” N.T. at 122; RR. 709a. The

court then instructed the jurors on the definition of factual cause as:

      And here the question is, were the asbestos products
      manufactured, distributed or supplied by that particular
      defendant, John Crane, Brand Insulation, you discuss these
      separately, was it a factual cause in bringing about lung cancer.

      In short, did the plaintiff suffer from an asbestos-related disease,
      that is, was the lung cancer an asbestos-related disease.

      Now, what do I mean by factual cause? Well, you imagine with
      lawyers and with judges there’s been a lot of discussion as to
      what do we mean by factual cause. I used to use the word
      substantial factor. I think they mean the same, but today we’re
      using factual cause.

      Factual cause is a legal cause. In order for the plaintiff to recover
      in this case, the exposure to the defendant’s asbestos products
      must have been a factual cause in bringing about his lung
      cancer. This is what the law recognizes as a legal cause.

      A factual cause is an actual real factor, although the result may
      be unusual or unexpected, but it is not an imaginary or fanciful
      factor or a factor having no connection or only an insignificant
      connection with Mr. Roverano’s lung cancer.

N.T. at 118-19; RR at 708a.

      By instructing the jury that Mr. Roverano must establish that his

exposure was regular, frequent, and proximate and such exposure was a


                                      -9-
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substantial cause of plaintiff’s lung cancer, the trial court “fully and

adequately convey[ed] the applicable law.”     Philips, 86 A.3d at 916-17.

We, thus, conclude the trial court did not abuse its discretion or commit an

error of law.

      Appellants also argue that the trial court erred in responding to the

jury’s question regarding the definition of “factual” cause. Crane’s Brief at

34; Brand’s Brief at 29. In response to the question, the trial court charged

the jury correctly by instructing the jury that factual cause is “legal cause,

sometime referred to as substantial factor:”

      Factual cause is a legal cause, sometimes referred to as substantial
      factor, but it’s the same—in my opinion they’re the same definition,
      so I’m going to give you the definition of factual cause as a legal
      cause.

      In order for the plaintiff to recover in this case, the exposure to
      defendant’s products based on the elements that I gave you must
      have been a substantial—must have been a factual cause in bringing
      about Mr. Roverano, the plaintiff’s lung cancer. This what the law
      recognizes as legal cause.

      A factual cause is a real actual-a factual cause is an actual real
      factor, although the result may be unusual or expected, but it is not
      an imaginary or fanciful factor or a factor having no connection or
      only an insignificant connection with the lung cancer.

      Keep in mind you could have more than one cause which is a factual
      cause, but that’s for you to decide. If you’ve got a couple of causes
      and you say one is not a factual cause and one is, the it can only be
      the one that you find the factual cause, but you can find that both
      were factual cause. That’s up to you. You’re the factfinders.

N.T. at 136-37; RR 712a.




                                    - 10 -
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      Appellants contend that the court’s response to the jury’s inquiry

was improper because it “changed [the jury’s] mind.” Crane’s Brief at 37;

see also Brand’s Brief at 32-33. The trial court properly instructed the

jurors on the law.   It is for the jurors to apply the law and determine

liability. We can only focus on the trial court’s instruction to the jury and

not speculation about the timing of the jury’s verdict.

      2. Causation Question on Verdict Sheet

      Appellant Crane argues that a principal theory of Appellants’ defense

“was that Mr. Roverano’s lung cancer was not caused by his exposure to

asbestos at all; rather [the cancer,] along with his emphysema and COPD,

was caused by his extensive smoking history.”             Crane’s Brief at 29.

Appellant contends that by denying a specific question on the Verdict Sheet

reflecting this theory, the trial court precluded Appellant Crane from

presenting this theory to the jury. Id.

      This is a challenge to the trial court’s discretion in fashioning questions

on the Verdict Sheet and we review such challenges for an abuse of

discretion. “An abuse of discretion is more than just an error of judgment

and, on appeal, a trial court will not be found to have abused its discretion

unless the record discloses that the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-will.”

Commonwealth v. Lane, 424 A.2d 1325, 1328 (Pa. 1981) (citation and

internal quotation marks omitted).



                                     - 11 -
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      Appellant Crane argues that the trial court should have specifically

included a question on the Verdict Sheet about whether smoking caused Mr.

Roverano's lung cancer.

      The questions on the Verdict Sheet were as follows:

       1. “Was the Plaintiff, Mr. Roverano, exposed to asbestos products
          manufactured, distributed or supplied by Defendant, John Crane,
          Inc.

       2. Were the asbestos products manufactured, distributed, or supplied
          by John Crane, Inc, a factual cause in bring about the Plaintiff’s
          lung cancer.”

RR 1058a-1059a (emphasis added.).

      In explaining the second question, the trial court instructed the jury,

inter alia: “In other words, did this exposure if you find it, did the plaintiff

suffer from an asbestos-related disease, the lung cancer, that is was it

caused by the exposure.” N.T., 4/13/16, at 37; RR 687a.

      The purpose of the Verdict Sheet is to provide a general guidepost to

the jury of the general issues the jury must decide. It is not to reflect either

party’s specific theories.

      In this case, the second question about factual cause on the Verdict

Sheet required the jury to consider whether it was smoking that caused Mr.

Roverno’s lung cancer. If the jury had found that it was smoking that had

caused Mr. Roverano's lung cancer, the jury would have answered “no” to

the second question.




                                     - 12 -
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      Therefore, we conclude that the trial court did not abuse its discretion

by denying Appellant’s request to include a question on the Verdict Sheet

that reflected its theory of the case.

       3.    “Unreasonably Dangerous” Question on Verdict Sheet

       Appellant Crane also argues that the trial court erred by failing to

provide the jury a question on the Verdict Sheet asking the jury whether

Crane’s asbestos products were “unreasonably dangerous” and thus,

defective.

       The trial court rejected Crane’s request for such a question because

“the issue in this case was one of exposure and causation, not an issue of

the defect of the product.”     Trial Ct. Op., dated 7/25/15, at 6.   The trial

court further noted that “neither defendant disputed that their products

contained asbestos without proper warnings. Their defenses were based on

the fact that the exposure to their products was minimal at best or, as with

Crane, encapsulated.”     Id.   The trial court concluded that “[a] question

about defect was irrelevant.” Id. at 7.

      We agree with the trial court’s conclusions that the trial was primarily

focused on exposure and causation. Appellant did not dispute that its

product contained asbestos.      As discussed above, the questions on the

Verdict Sheet are to provide generalized guideposts to the jurors. To add a

question about defect when the parties did not present evidence on the issue




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or argue about it in their opening or closing statements would have confused

the jury.

       Moreover, the trial court properly relied upon the analysis in Moore v.

Ericsson, 7 A.3d 820 (Pa. Super. 2010), in which this Court noted with

approval the trial court’s determination as a matter of law that wire and

cable containing asbestos was defective. See id. at 826.

      As the trial judge stated, the issue was not whether a product
      was defective because it contained asbestos; “instead, the trial
      issues, and therefore the factual issues remaining for the jury
      were limited to whether the Defendant's particular product
      contained asbestos, whether the Plaintiff was exposed to it, and
      whether such exposure caused Plaintiff's mesothelioma.” We find
      no error or abuse of discretion.

Id. (citing Trial Court Opinion).

       As the trial court in the instant case noted, “neither defendant

disputed that their products contained asbestos without proper warnings.”

Trial Ct. Op. at 6.    Therefore, the trial court properly rejected Appellant

Crane’s request that the Verdict Sheet contain a question about whether the

asbestos was unreasonably dangerous and limited the questions on the

Verdict Sheet to whether Appellee was exposed to the defendant’s asbestos

and whether that exposure caused his lung cancer.

   4. “Each and Every” Exposure Testimony

      Appellant Crane argues that the trial court erred by allowing

Roveranos’ experts to offer evidence that “each and every” or “whatever”




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asbestos exposure caused Mr. Roverano’s injury where Mr. Roverano did not

have mesothelioma, asbestosis, or any other marker of asbestos exposure.

      We disagree with Appellant Crane’s characterization of the expert

testimony of the Roveranos. A review of the entire testimony of the

Roverano experts demonstrates that Roveranos' experts did not testify that

it was a single exposure to the Appellants' products that caused Mr.

Roverano's lung cancer; rather, that it was multiple exposures that were a

substantial factor in causing Roverano’s lung cancer.

      For instance, Dr. Frank testified at length that both smoking and

regular, proximate, and frequent exposure to asbestos in Appellant Crane’s

products caused Mr. Roverano’s lung cancer. Dr. Frank first testified about

general causation:

      Cigarette smoking causes lung cancer. Asbestos exposure causes
      lung cancer. When you put the two together, is there some
      interaction between the two that increases the possibility of
      getting lung cancer, and the answer is yes. And there are
      numbers on this and it varies depending on which study you look
      at which time…So there is what we call a multiplicative or
      synergistic response. And again other studies vary by what that
      number. Some are higher, some are lower, but it more than
      simply an additive effect when you put the two together.

N.T., 4/7/16, at 36-38; RR. 533a-34a.

      Dr. Frank later provided testimony regarding specific causation by

testifying that based upon Mr. Roverano’s testimony of his regular,

proximate, and frequent exposure to Appellant Crane’s asbestos products,

that, to a degree of medical certainty,



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      whatever exposure Mr. Roverano had to John Crane packing
      products as described in the hypothetical would have been a
      substantial contributing cause or would have been a factual
      cause of his lung cancer and would have added to his total
      exposures, were part of his cumulative exposure and therefore
      are part of what caused his lung cancer.”

N.T., at 63; RR R540a.3

      Dr. Frank did not base his conclusions on the premise that Mr.

Roverano had a single exposure to asbestos. In fact, Appellant Crane failed

to point to testimony of any expert who based his opinion on the premise of

a single exposure.

      Appellant Crane argues that the trial court should have precluded the

Roverano’s experts’ opinions because they failed to provide “any serious

assessment of the causal attribution by assessing the frequency, regularity

and proximity of Mr. Roverano’s exposure to JCI’s products.” Appellant

Crane’s Brief, at 40, citing Rost, supra.           By characterizing the experts’

testimony as lacking “any serious assessment,” Crane’s averment challenges

the weight, not the admissibility, of the evidence.

      It is within the province of the jury to determine the weight to give the

evidence   and   this   Court   will   not      disturb   the   fact-finder’s   weight


3 Dr. Frank also opined that “the Brand Insulation materials to which Mr.
Roverano was exposed to were a factual cause and contributed to his
developing his lung cancer. The basis of that is the same, that it’s part of
his cumulative exposure, it added to his risk, and when he got the disease,
you have to say it was one of the factors that contributed to the totality of
his dose which ended up giving his lung cancer.” N.T., 4/7/16, at 67; RR.
541a.



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determination. See Commonwealth v. Champney, 832 A.2d 403, 408 (Pa.

2003) (noting that “the weight of the evidence is exclusively for the finder of

fact” and “an appellate court cannot substitute its judgment for that of the

finder of fact.”).   Accordingly, we will not disturb the factfinder’s weight

determination.

      Appellant also avers that “the Plaintiff’s experts’ testimony should

additionally have been barred because this is not a mesothelioma case.”

Crane’s Brief at 43. Again, Crane’s argument pertains to the weight, not the

admissibility, of the evidence.

      Appellants presented evidence that asbestos exposure can only cause

mesothelioma,4 and argued that because Mr. Roverano developed lung

cancer, it had demonstrated that it was not asbestos that caused his lung

cancer.   However, Dr. Frank testified on this general causation factor and

concluded that exposure to asbestos can cause lung cancer.        Dr. Gelfand

also testified that, based on the medical literature and his experience, Mr.

Roverano’s exposure to asbestos was a “substantial contributing factor to his

lung cancer and to his poor prognosis for survival.” See Crane Brief at 16-

17, citing N.T. at RR 540a, 765a.

      Appellant Crane essentially argues that because the jury believed the

Roveranos' experts and not the Appellants' experts on the question of


4Mesothelioma is a cancer of the lining of the lungs. Gregg v. V-J Auto
Parts Co., 943 A.2d 216, 217 (Pa. 2007).



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general causation, the court erred in permitting the experts to testify. We

decline to disturb jury’s weight determination.



        5.   Molding the Verdict to Include Non-Liable Defendants

        Georgia Pacific Cement and Hajoca Corporation were both included on

the Verdict Sheet, and the jury was specifically instructed to determine

whether either named defendant “manufactured, distributed, or supplied”

products which “were factual causes in bringing about Plaintiff’s lung

cancer.” Jury Verdict – Questions to be Answered by the Jury, filed 4/15/16,

at 3.    After hearing the evidence presented at trial, the jury found that

Georgia Pacific Cement and Hajoca Corporation were not liable for the harm

to Appellees. Id.

        In light of the fact that the jury did not find that Georgia Pacific

Cement and Hajoca Corporation to be tortfeasors,5 the trial court did not err

in refusing to mold the verdict to include them.

        6.   Fair Share Act

        Appellants contend that the trial court erred as a matter of law by

refusing to apply the Fair Share Act, 42 Pa.C.S. § 7102(a.1)-(a.2), to this

case because the litigation involves exposure to asbestos. They argue that

5 In light of our holding in the next section that finds that it is a jury who
must apportion liability among tortfeasors, we note that since the jury did
not find Georgia Pacific Cement and Hajoca Corporation to be tortfeasors,
they should not be included in a jury determination apportioning damages
among tortfeasors. See note 11, infra.



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the Roveranos’ claim falls within the ambit of the Act and that nothing in the

plain language of the Act supports the trial court’s decision to exempt

asbestos litigation from the Act’s requirements. We agree.6

      Statutory interpretation is a question of law. Therefore, our standard

of review is de novo, and our scope of review is plenary. Commonwealth

v. Hall, 80 A.3d 1204, 1211 (Pa. 2013). “In all matters involving statutory

interpretation, we apply the Statutory Construction Act, 1 Pa.C.S. § 1501 et

seq., which provides that the object of interpretation and construction of

statutes is to ascertain and effectuate the intention of the General

Assembly.”   Commonwealth v. McCoy, 962 A.2d 1160, 1166 (Pa. 2009)

(citation omitted).

      Generally, a statute’s plain language provides the best indication of

legislative intent. In re Trust of Taylor, 164 A.3d 1147, 1155 (Pa. 2017).

We will look beyond the plain language of the statute only when the words

are unclear or ambiguous, see id., or the plain meaning would lead to “a

6  Application of the Fair Share Act to strict liability cases involving asbestos
exposure is a question of first impression in this Court. Appellants argue
that dicta in Rost 151 A.3d at 1044 n.7, another case dealing with personal
injuries caused by exposure to asbestos, establishes that the Act applies to
these cases. The cited footnote in Rost discussed policy issues underlying
some of the Supreme Court’s decisions regarding liability from asbestos
exposure, including issues stemming from application of joint and several
liability, and then added: “Pennsylvania has now eliminated joint and
several liability in most cases through amendment of the Fair Share Act.”
This sentence is a far cry from a clear statement about the statute’s
application to asbestos cases, and, although we address this issue mindful of
the Supreme Court’s guidance in Rost, we do not find the footnote
determinative.



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result that is absurd, impossible of execution or unreasonable.” 1 Pa.C.S. §

1922(1).   Therefore, when ascertaining the meaning of a statute, if the

language is clear, we give the words their plain and ordinary meaning. Hall,

80 A.3d at 1211.

     The Fair Share Act was enacted in 2011 as an amendment to the

section of the Judicial Code, 42 Pa. C.S. § 7102, that had provided for

comparative negligence. See Act No. 2011-17, P.L. 778 (June 28, 2011). It

replaced subsection (b) of that statute with two new subsections:

     (a.1) Recovery against joint defendant; contribution. —

            (1) Where recovery is allowed against more than one
     person, including actions for strict liability, and where liability is
     attributed to more than one defendant, each defendant shall be
     liable for that proportion of the total dollar amount awarded as
     damages in the ratio of the amount of that defendant’s liability
     to the amount of liability attributed to all defendants and other
     persons to whom liability is apportioned under subsection (a.2).

             (2) Except as set forth in paragraph (3), a defendant’s
     liability shall be several and not joint, and the court shall enter a
     separate and several judgment in favor of the plaintiff and
     against each defendant for the apportioned amount of that
     defendant’s liability.

           (3) A defendant’s liability in any of the following actions
     shall be joint and several, and the court shall enter a joint and
     several judgment in favor of the plaintiff and against the
     defendant for the total dollar amount awarded as damages:

               (i)      Intentional misrepresentation.

               (ii)     An intentional tort.

               (iii)     Where the defendant has been held liable for
               not less than 60% of the total liability apportioned to all
               parties.


                                    - 20 -
J. A10014/17



               (iv)     A release or threatened release of a hazardous
               substance under section 702 of the act of October 18,
               1988 (P.L. 756, No. 108), known as the Hazardous
               Sites Cleanup Act.

               (v)      A civil action in which a defendant has violated
               section 497 of the act of April 12, 1951 (P.L. 90, No.
               21), known as the Liquor Code.

            (4) Where a defendant has been held jointly and severally
     liable under this subsection and discharges by payment more
     than that defendant’s proportionate share of the total liability,
     that defendant is entitled to recover contribution from
     defendants who have paid less than their proportionate share.
     Further, in any case, any defendant may recover from any other
     person all or a portion of the damages assessed that defendant
     pursuant to the terms of a contractual agreement.

     (a.2)    Apportionment of responsibility among certain
     nonparties and effect. — For purposes of apportioning liability
     only, 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. A
     person whose liability may be determined pursuant to this
     section does not include an employer to the extent that the
     employer is granted immunity from liability or suit pursuant to
     the act of June 2, 1915 (P.L. 736, No. 338), known as the
     Workers’ Compensation Act. An attribution of responsibility to
     any person or entity as provided in this subsection shall not be
     admissible or relied upon in any other action or proceeding for
     any purpose. Nothing in this section shall affect the admissibility
     or nonadmissibility of evidence regarding releases, settlements,
     offers to compromise or compromises as set forth in the
     Pennsylvania Rules of Evidence. Nothing in this section shall
     affect the rules of joinder of parties as set forth in the
     Pennsylvania Rules of Civil Procedure.

42 Pa. C.S. § 7102(a.1)-(a.2). The Act applies to claims that accrued after

June 28, 2011, and the parties agree that the Roveranos’ claims did not

accrue before that time.


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       One of the main purposes of the Fair Share Act was to make joint and

several liability inapplicable to most tort cases.   The statute accomplished

that objective in subsection (a.1)(2), which states that, apart from a limited

class of excepted cases, “a defendant’s liability shall be several and not joint,

and the court shall enter a separate and several judgment in favor of the

plaintiff and against each defendant for the apportioned amount of that

defendant’s liability.”   The Act’s lengthy other provisions make clear,

however, that the statute is not limited only to restricting joint and several

liability.   Rather, insofar as is relevant here, the Act also made several

adjustments to the rules for allocating liability among joint tortfeasors.

       Before enactment of the Fair Share Act, the Comparative Negligence

Act provided for proportionate recovery against negligent joint tortfeasors

according to a percentage determination that was made by the fact-finder:

       Where recovery is allowed against more than one defendant,
       each defendant shall be liable for that proportion of the total
       dollar amount awarded as damages in the ratio of the amount of
       his causal negligence to the amount of causal negligence
       attributed to all defendants against whom recovery is allowed.
       ...

42 Pa. C.S. § 7102(b) (deleted 2011); see Embrey v. Borough of West

Mifflin, 390 A.2d 765, 769 (Pa. Super. 1978) (role of jury in allocating

liability). Liability among joint tortfeasors who were strictly liable was not

covered by the statute and, under court decisions, was calculated on a per




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J. A10014/17


capita7 basis — that is, if five defendants were found strictly liable, each

would be allocated 20% of the liability regardless of how much each

defendant’s conduct contributed to the injury. See Baker v. ACandS, 755

A.2d 664, 669 (Pa. 2000); Walton v. Avco Corp., 610 A.2d 454, 462 (Pa.

1992).

      One of the new Fair Share Act provisions enacted to replace Section

7102(b) was Section 7102(a.1)(1), which employed language similar to that

in Section 7102(b), but applied it to both negligent and strictly liable joint

tortfeasors:

      Where recovery is allowed against more than one person,
      including actions for strict liability, and where liability is
      attributed to more than one defendant, each defendant shall be
      liable for that proportion of the total dollar amount awarded as
      damages in the ratio of the amount of that defendant’s liability
      to the amount of liability attributed to all defendants and other
      persons to whom liability is apportioned under subsection (a.2).

42 Pa. C.S. § 7102(a.1)(1). A principal question in this case is whether, and

to what extent, this provision changed the way to allocate liability among

strictly liable joint tortfeasors.

      Prior to trial, several defendants, including Brand and Crane, filed a

motion in limine seeking a ruling that their liability, if any, would be

apportioned by the jury according to the extent to which each defendant


7  Consistent with some of the case law, Appellees call this a “pro rata”
allocation. Appellants use “per capita,” and that term provides a clearer
description of the result. The different terminology does not imply any
substantive difference in the way liability was determined.



                                     - 23 -
J. A10014/17


caused harm to Mr. Roverano. The court heard argument on that motion on

April 5, 2016, and summarized the motion as follows:

      [W]hat you’re saying is that you want an apportionment —
      rather than per capita, you want an apportionment instruction to
      the jury and you want the jury to actually apportion the share of
      liability if they reach that issue.

Tr., 4/5/16, at 9. The court then explained why it would deny the motion:

      Here is my difficult[y] with this and why I’ve denied it in the past
      and I will here and you all have an exception, is that all of the
      testimony I’ve ever heard in asbestos, no one quantifies it. They
      say that you can’t quantify it. If you can’t quantify it, how can
      the Fair Share Act apply?

Id. at 9-10.    After a discussion during which defense counsel proposed

possible ways of proving an allocation, the trial court reiterated that the

motion in limine was denied. Id. at 10-16. In its post-trial opinion, the trial

court stated that it “properly denied [Appellants’] motion to apply the Fair

Share Act to this case” because the jury was not presented with evidence

that would permit an apportionment to be made by it.             Trial Ct. Op.,

7/27/15, at 9-10.

      In holding that the Fair Share Act did not “apply” to this case, the trial

court erred. This was an action to hold Appellants strictly liable in tort for

injuries allegedly caused by asbestos-containing products that they made or

distributed, and the Fair Share Act explicitly applies to tort cases in which

“recovery is allowed against more than one person, including actions for

strict liability.” 42 Pa. C.S. § 7102(a.1)(1) (emphasis added). Nothing in

the statute makes an exception for strict liability cases involving asbestos.


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J. A10014/17


Rather, Section 7102(a.1)(3) excepts only four specific kinds of tort actions

—    intentional   misrepresentation,     other   intentional      torts,   certain

environmental cases, and dram shop actions — and cases involving asbestos

are not among them.

      The Roveranos contend that Section 7102(a.1)(1)’s reference to strict

liability actions was intended only to make clear that the Act’s abrogation of

joint and several liability applies to such cases. They contend that the Act is

silent on how liability among strictly liable joint tortfeasors is to be

apportioned, and that this silence means that apportionment may continue

to be done in the same way as it was done before the statute’s enactment —

on a per capita basis.    In support of this argument, they point out that

Section 7102(a.1)(1) says only that each joint tortfeasor’s liability shall

equal “that proportion of the total dollar amount awarded as damages” that

is calculated by determining “the ratio of the amount of that defendant’s

liability” to the total liability of all defendants. The Act does not specify how

that ratio is to be determined, and therefore, they contend, the rule of per

capita apportionment applicable before the Fair Share Act’s enactment

remains unchanged.       We disagree.    Rather, by explicitly making strictly

liable joint tortfeasors subject to the same liability allocation section as that

applicable to negligent joint tortfeasors, the Legislature made clear that it

intended for liability to be allocated in the same way for each.




                                     - 25 -
J. A10014/17


      The fact that the Fair Share Act does not explicitly say how to allocate

liability among strictly liable joint tortfeasors just means that the statute is

ambiguous on that issue, not that the statute does not address it. See In

re Trust of Taylor, 164 A.3d at 1156 (a statute is ambiguous if it does not

“contain[] any explicit language addressing the issue raised”). The statute is

silent on the manner of calculating the ratio for all kinds of tort cases, not

just strict liability cases.   Any suggestion that the silence has special

meaning for strict liability cases therefore is unfounded. There is nothing in

the statute to suggest that the Legislature intended the ratio under Section

7102(a.1)(1) to be calculated one way for negligent tortfeasors and a

different way for those strictly liable.   Rather, the similarity between the

language of former Section 7102(b) and new Section 7102(a.1)(1) suggests

that the Legislature intended that the allocation method applicable to

negligence cases was merely being expanded to apply to strict liability cases

too. The “including actions for strict liability” clause in Section 7102(a.1)(1)

supports this conclusion; this clause suggests that the allocations of liability

that had been done by a jury in negligence cases now would “include” strict

liability cases as well.

      The Legislature’s placement of the “including actions for strict liability”

clause is revealing. If, as Appellees suggest, the Legislature intended only

to make clear that the abrogation of joint and several liability applied to

strict liability actions, it would have       added that clause      to   Section



                                     - 26 -
J. A10014/17


7102(a.1)(2), which abrogates joint and several liability.         Instead, the

Legislature added that clause to Section 7102(a.1)(1), which deals with

allocation of liability among joint tortfeasors. By doing so, the Legislature

clearly intended to make a change in the allocation rules that applied before

the Fair Share Act’s enactment, which called for a fact-based allocation in

negligence cases and a per capita allocation in strict liability cases. If the

Legislature did not intend to change those rules, there would be no reason to

add the “including actions for strict liability clause” to Section 7102(a.1)(1).

       A comparison of Section 7102(a.1)(1) to the language of Section

7102(b) that it replaced shows that the Legislature accomplished its

objective by changing the allocation components from —

       the amount of [the tortfeasor’s] causal negligence to the
       amount of causal negligence attributed to all defendants against
       whom recovery is allowed

to —

       the amount of that defendant’s liability to the amount of liability
       attributed to all defendants and other persons to whom liability
       is apportioned.

The inclusion of strict liability cases obviously accounts for the Legislature’s

replacement of “causal negligence” with “liability.”     Because this was the

only change relevant to this issue that the Legislature made to its allocation

formula,8 this comparison again supports the view that the Legislature


8 The Legislature also added the phrase, “and other persons to whom liability
is apportioned,” which we discuss below.



                                     - 27 -
J. A10014/17


intended allocation of liability under Section 7102(b) to carry over under the

new statute and to apply to strict liability cases in the same way as it had

been done previously under the comparative negligence statute.9

      The structure and context of the Fair Share Act as a whole thus

support the view that Section 7102(a.1)(1) reflects the Legislature’s

intention to have a fact-finder allocate liability among joint tortfeasors in all

types of cases, including strict liability cases. This conclusion is confirmed

by the statute’s history. See 1 Pa. C.S. § 1921(c)(7) (“When the words of a

statute are not explicit, the intention of the General Assembly may be


9  This case does not require us to opine on the factors that should be
considered in allocating liability among strictly liable tortfeasors under
Section 7102(a.1)(1). Prior law prohibited a fault-based allocation because
of a desire in product liability actions at that time to “fortif[y] the theoretical
dam between the notions of negligence and strict ‘no fault’ liability,”
Walton, 610 A.2d at 462, but that dam was cracked in Tincher v. Omega
Flex, Inc., 104 A.3d 328, 376-81, 399-406 (Pa. 2014) (discussing and
rejecting prior law’s effort to completely divorce negligence and strict liability
concepts). Even if there were still some reason to avoid a fault-based
allocation method, it is not apparent on this record why liability among
strictly liable tortfeasors may not be allocated by a jury without
consideration of wrongdoing. A court may apportion liability when it is able
to identify “a reasonable basis for determining the contribution of each cause
to a single harm.” Restatement (Second) of Torts § 433A(1) (1965); see
Martin v. Owens-Corning Fiberglas Corp., 528 A.2d 947, 949 (Pa.
1987). Brand suggests that liability could have been apportioned here
according to the amount of Mr. Roverano’s potential exposure to each
defendant’s product. Brand’s Br. at 19-20. Crane makes a similar argument
that would factor in the potency of the type of asbestos to which Mr.
Roverano was exposed (chrysotile versus amphibole). Crane’s Br. at 45-46.
These causation-based arguments clearly suggest bases for apportionment
apart from fault. Their reasonableness is for the trial court to determine in
the first instance, and the weight of their supporting evidence is a matter for
the jury.



                                      - 28 -
J. A10014/17


ascertained    by   considering,   among     other   matters   .   .   .   [t]he

contemporaneous legislative history”).

     The Act was a reenactment of substantially identical legislation

enacted in 2002 that was later declared invalid because it was part of a bill

addressing multiple subjects in violation of Article 3, Section 3 of the

Pennsylvania Constitution.   See Fair Share Act of 2002, Act No. 2002-57,

P.L. 394 (June 19, 2002), held invalid in DeWeese v. Weaver, 880 A.2d

54, 62 (Pa. Cmwlth. 2005), aff’d without opinion, 906 A.2d 1193 (Pa.

2006). The 2002 statute was hotly debated in the Legislature, and during

those debates the bill’s floor manager in the House, Representative Mike

Turzai, was asked the precise question that now is before this Court:

     Mr. GANNON. . . . Mr. Speaker, where you have a Pennsylvania
     manufacturer selling a product in Pennsylvania through a seller,
     a seller sells the product, it has got a manufacturing defect, how
     would that liability be apportioned under this law — proposed
     law; excuse me.

     Mr. TURZAI. Yes. If both of those defendants are present, as you
     have suggested, and you have strict liability claims, . . . you
     would not take into account the plaintiff’s actions or the
     plaintiff’s behavior in terms of reducing the ultimate award as
     you do in negligent situations.      However, . . . you would
     apportion the damages between strict liability defendant number
     one and strict liability defendant number two. Let us assume
     they are 70-30 and you would go after strict liability one for the
     70 and you would go after strict liability two for the 30 to the
     degree that the jury or the judge found them causally
     responsible.




                                    - 29 -
J. A10014/17


2002 Pa. Leg. J. (House) 1199 (June 4, 2002).10          Representative Turzai’s

answer made clear that liability apportionment between two strictly liable

tortfeasors would not be per capita, but instead would be based on “the

degree that the jury or the judge found them causally responsible,” in a

manner similar to allocation among negligent joint tortfeasors.

      At no time during the debates on the 2002 legislation or the 2011

legislation was there ever any suggestion that Representative Turzai’s view

of liability allocation under the statute was incorrect or that there would be

any allocation among strictly liable joint tortfeasors on a per capita basis.

Rather, throughout the debates, the repeated concern was about tortfeasors

(both strictly liable tortfeasors and negligent tortfeasors) who would be

allocated only a small percentage of liability;      the bill’s opponents worried

that if the legislation were enacted, recovery against such defendants would

not make the plaintiff whole, while proponents worried that unless the bill

were enacted such defendants would have to pay more than their fair share

of the verdict. No one suggested that these implications were different for

strictly liable joint tortfeasors than for others.

      In fact, the general understanding that strictly liable joint tortfeasors

would have liability allocated in the same way as other tortfeasors led to the

10 Representative Turzai later clarified that if one of the two defendants was
70% liable, the case would fall within the exception in Section
7102(a.1)(3)(iii) that permits that defendant to be held jointly and severally
liable. 2002 Pa. Leg. J. (House) at 1199. That clarification does not change
the relevance of his answer for purposes of the issue in this case.



                                       - 30 -
J. A10014/17


enactment of one of the exceptions in Section 7102(a.1)(3) of the Act.

During the 2002 debates, there was concern about how the bill would affect

recoveries in toxic tort actions, in which strict liability claims often are

brought against multiple defendants. See 2002 Pa. Leg. J. (House) at 1204-

05, 1213-14. As a result of those debates, the bill was amended to include

Section 7012(a.1)(3)(iv), which preserves joint and several liability for

certain strict liability environmental claims.    See 2002 Pa. Leg. J. (Sen.)

1908-09 (June 12, 2002); 2002 Pa. Leg. J. (House) 1349-50 (June 17,

2002). The amendment shows that the Legislature believed allocation on a

non-per capita basis in strict liability cases would be the rule, and that it had

to enact an exception if it wanted a different rule.

      Finally, the Legislature has instructed that we are to interpret a statute

“to give effect to all its provisions.”          1 Pa. C.S. § 1921(a); see

Commonwealth v. Anderson, 169 A.3d 1092, 1096 (Pa. Super. 2017) (en

banc). But Appellees’ interpretation would make an important provision of

the Act, Section 7102(a.1)(3)(iii), inapplicable to strict liability actions.

Section 7102(a.1)(3)(iii) was a compromise provision.         It states that if a

defendant is held liable for more than 60% of the liability in the case, joint

and several liability applies to that defendant. This exception assures that

those defendants who are substantially responsible for a plaintiff’s injury will

have to account for the full amount of the plaintiff’s harm. But if liability in a

strict liability case is per capita, it is mathematically impossible for any of



                                      - 31 -
J. A10014/17


those defendants to reach the 60% threshold: with just two defendants, a

defendant’s liability can only be 50%, and the liability percentage will

decrease as the number of defendants increases. That is not the result the

Legislature intended.

      We, therefore, conclude that liability in strict liability cases must be

allocated in the same way as in other tort cases, and not on a per capita

basis, and that the trial court erred in holding that the jury could not

apportion liability pursuant to the Fair Share Act. Of course, apportionment

by the jury will require submission of appropriate evidence from which the

jurors may make an allocation.        Questions regarding the nature of that

evidence should be resolved by the trial court in the first instance on

remand.

      We also agree with Appellants that the jury on remand must be

permitted to consider evidence of any settlements by the Roveranos with

bankrupt entities in connection with the apportionment of liability. Section

7102(a.2) of the Fair Share Act states: “For purposes of apportioning liability

only, 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.” Under Section 7102(a.1)(1), the settling party’s

liability is included in the “amount of liability attributed to all defendants and

other persons to whom liability is apportioned under subsection (a.2)” for



                                      - 32 -
J. A10014/17


purposes of allocating liability among the joint tortfeasors. These provisions

require that settlements with bankrupt entities be included in the calculation

of allocated liability under the statute.11

      Section 7102(a.2) contains no exception for settling persons who are

bankrupt. Rather, the section refers to “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.”      42 Pa. C.S. § 7102(a.2) (emphasis added).       The

Roveranos claim, however, that our decisions in Ottavio v. Fibreboard

Corp., 617 A.2d 1296, 1300 (Pa. Super. 1992) (en banc), and Ball v.

Johns-Manville Corp., 625 A.2d 650 (Pa. Super. 1993), which prohibited

consideration of settlements with bankrupt entities prior to enactment of the

Fair Share Act, continue to bar consideration of such settlements here.

Because Ottavio and Ball were based on policy considerations that do not

apply under the Fair Share Act, we conclude that this argument is mistaken.

      In Ottavio, the defendant, one of several manufacturers of products

containing asbestos, objected to an apportionment of liability among such

manufacturers on the ground that bankrupt manufacturers were not included

in the calculation. Ottavio, 617 A.2d at 1300. In holding that the federal

11 Appellants concede that this requirement is subject to the qualification
that they “submit evidence to establish that the non-parties were joint
tortfeasors.” See Amato v. Bell & Gossett, 116 A.3d 607, 617 (Pa. Super.
2015), appeal dismissed sub nom. Vinciguerra v. Bayer CropScience,
Inc., 150 A.3d 956 (Pa. 2016). In addition, we agree with Appellees that
Section 7102(a.2) does not apply to bankrupt entities (or their successors in
interest) with whom they have not settled and received releases.



                                      - 33 -
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Bankruptcy Code      prohibited inclusion of bankrupt companies in the

calculation, we observed that an allocation of fault pursuant to the

Comparative Negligent Act12 made the other parties to the allocation joint

tortfeasors against whom, under the then-prevailing rules of joint and

several liability, another tortfeasor could seek contribution.       That result

would violate the automatic stay provisions of the Bankruptcy Code 13 and

therefore was preempted by federal law. See id. In Ball, we reached the

same result on the basis of our holding in Ottavio. See Ball, 625 A.2d at

660.

       The Fair Share Act does not permit a similar result here.        Not only

does it do away with joint and several liability in most cases, but it contains

the following mandate in Section 7102(a.2): “An attribution of responsibility

to any person or entity as provided in this subsection shall not be admissible

or relied upon in any other action or proceeding for any purpose.” The Act

thus prohibits use of an allocation against a bankrupt company as a basis

for seeking contribution or any other recovery against that company;

indeed, the Act makes the allocation finding inadmissible in any other case.

12   The case apparently included a negligence claim.
13  Section 362 of the Bankruptcy Code provides that the filing of a
bankruptcy petition “operates as a stay, applicable to all entities, of . . . [an]
action or proceeding against the debtor . . . to recover a claim against the
debtor that arose before the commencement of the case under this title” and
“any act to collect, assess, or recover a claim against the debtor that arose
before the commencement of the case under this title.”                11 U.S.C.
§ 362(a)(1), (6).



                                     - 34 -
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The finding, therefore, cannot expose the bankrupt company to any sort of

claim forbidden by the Bankruptcy Code.        As a result, it does not conflict

with the Code and is not preempted by it.14

      This is the same conclusion as that reached by our colleague Judge

Strassburger when he confronted this issue as a trial judge under the 2002

statute. Finding cases like Ball and Ottavio “inapposite,” he observed:

      Under the Act, it is a new ball game[.] The defendant in Ball was
      seeking a judgment against bankrupt entities. Clearly that would
      have violated the automatic stay. The new Act provides:

         An attribution of responsibility to any person or entity as
         provided in this subsection shall not be admissible or relied
         upon in any other action or proceeding for any purpose.

      Thus, no judgment       violative   of   the   automatic   stay   can
      eventuate.

Slayton v. Gold Pumps, Inc., No. GD 03-010873, 2004 Pa. Dist. & Cnty.

Dec. LEXIS 335, *5 (C.P. Alleg., Oct. 25, 2004). Courts in other jurisdictions

have reached similar conclusions when confronted with legislation similar to

the Fair Share Act. See, e.g., Bondex v. Ott, 774 N.E.2d 82, 87 (Ind. App.

14 In this respect, we note that “there is a presumption against preemption.”
Dooner v. DiDonato, 971 A.2d 1187, 1194 (Pa. 2009) (emphasis in
original). A statute that is preempted by federal law is unconstitutional
because it violates the Supremacy Clause (Art. VI, cl. 2) of the federal
Constitution. Id. at 1193. But “acts passed by the General Assembly are
strongly presumed to be constitutional,” and “a statute will not be declared
unconstitutional unless it clearly, palpably, and plainly violates the
Constitution.” Pa. State Ass’n of Jury Comm’rs v. Commonwealth, 64
A.3d 611, 618 (Pa. 2013) (citations and quotation marks omitted). The
presumption against preemption and corollary presumption against
unconstitutionality strongly weigh against following Ottavio as a basis for
declining to apply the Fair Share Act according to its terms.



                                    - 35 -
J. A10014/17


2002); see also In re Shondel, 950 F.2d 1301, 1306-07 (7th Cir. 1991)

(discussing effect of bankruptcy discharge under Section 524 of Code).

       For these reasons, we hold that the trial court failed to apply the Fair

Share Act in the manner intended by the Legislature and that we therefore

need to remand this case for a new trial on the question of apportionment of

liability.

       Judgment vacated. Order denying Post Trial Motions affirmed in all

respects other than that portion dealing with the Fair Share Act; such

portion of the Order is reversed. Case remanded for a new trial to apportion

the   jury   verdicts    among    the   Appellants,   the    non-bankrupt    settling

defendants (excluding Georgia Pacific Cement and Hajoca because the jury

determined     that     they   were   not   tortfeasors)    and   bankrupt   settling

defendants. Jurisdiction relinquished.

       President Judge Emeritus Ford-Elliott joins this Opinion Per Curiam.

       Judge Solano files a Concurring and Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/17




                                        - 36 -
