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Pennsylvania is one step closer to joint and several liability reform as the state Senate has approved a bill which would replace joint and several liability with a system of comparative negligence when a party’s liability in a civil action is less than 60 percent. Senate Bill 435, which was widely considered the bolder of two reform-minded proposals that have been debated by the Senate in recent weeks, passed 32-18 toward the end of business Tuesday. Last month, members of the Pennsylvania Bar Association described the alternative legislative proposal — which would eliminate joint liability only when a defendant’s percentage of negligence is less than the plaintiff’s — as the “lesser of two evils.” S.B. 563, which was pulled from the calendar following the passage of S.B. 435, was sponsored by Sen. Stewart J. Greenleaf, R-Bucks/Montgomery. S.B. 435 was sponsored by Sen. Jake Corman, R-Centre, who has advocated for tort-reform legislation in the past. Harrisburg insiders said yesterday that although legislation virtually identical to S.B. 435 passed the House three years ago, it is likely that the House will create its own version of S.B. 435, paving the way for a second debate in the Senate on how best to reform the doctrine of joint and several liability. Greenleaf told The Legal Intelligencer Wednesday that he hopes the introduction of a House companion to S.B. 435 by Rep. Mike Turzai, R-Allegheny, will give him such an opportunity. “I’m not disappointed, because the process isn’t over,” Greenleaf said. “It is my hope that a compromise can be arrived at that is a little more fair to the victims” who are awarded damages in civil court. Turzai’s office did not immediately respond to a call seeking comment. There has in recent years been a growing sense among Pennsylvania lawyers that some form of joint and several liability reform is inevitable. “Reality has set in,” PBA civil litigation section delegate Marvin Wilenzik — an attorney with Elliott Greenleaf & Siedzikowski in Blue Bell, Pa., where Greenleaf is a senior shareholder — said last month. “We are correctly advised there is no possibility one of these bills won’t become law.” Philadelphia Bar Association Chancellor-elect Alan Feldman said that the association took a position similar to that of the PBA on the issue — it doesn’t support the idea of joint and several liability reform, but if the application of the doctrine is to be changed legislatively, it is in favor of the Greenleaf proposal. “I’m disappointed that the Greenleaf proposal wasn’t adopted by the Senate,” Feldman said. “Joint and several liability is a complicated concept, but ultimately what it’s about is a principle of law that’s been accepted in our commonwealth for a long, long time.” Some believe it is preordained that the House will pass the Corman legislation. In 2002, the General Assembly passed sweeping changes to the joint and several liability doctrine, but the Commonwealth Court declared that law unconstitutional on procedural grounds. Don Houser, Corman’s spokesman, said the senator is reasonably confident that S.B. 435, or a bill identical to it, will pass the House. “We are optimistic that it’ll pass again,” Houser said, referring to the 2002 joint and several liability reform legislation. But Mark Phenicie, legislative counsel for the Pennsylvania Trial Lawyers Association, said he does not believe that support for bolder joint and several liability reform is as strong in the House today as it was three years ago. He noted that in 2002, then-Gov. Mark Schweiker was heavily backing tort reform in general. Phenicie and Gregg Warner — counsel to the Senate Judiciary Committee, of which Greenleaf is chair — both noted that the Greenleaf proposal came close to being approved by the Senate when there was a vote on whether to amend the Corman bill in a way that would have effectively added in the key elements of the Greenleaf proposal. The vote on that amendment was 24-26. “We fully believed up to the end that we had at least 25″ votes in favor of Greenleaf amendment, Phenicie said. If that had been the case, he added, Lt. Gov. Catherine Baker Knoll would have cast the tie-breaking vote, and she was expected to have voted in favor of the Greenleaf proposal. Phenicie also said that Senate majority leadership pressured Republican members to vote against the Greenleaf amendment to the Corman bill. Greenleaf declined to comment on whether such pressure had been exerted.

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