On Aug. 13, former defense attorney Curtis Schroder, who now works for a business funded-legal reform group, wrote an opinion article in the Legal Intelligencer titled “10-Year Anniversary of Pa.’s Fair Share Act Marred by Continued Attacks.” The tenor of this article was to assail members of our appellate judiciary, who are not permitted to respond to the ad hominem attacks on their well-written opinions detailing their jurisprudential construction of the Pennsylvania Fair Share Act. Because the Code of Judicial Conduct prevents our appellate judges from providing public comments about cases or controversies, I write as a volunteer to refute these inappropriate attacks upon our judiciary. [Parenthetically, I note that the Fair Share Act was championed by business associations and health care providers. See Chris Mondics, “Pennsylvania Trial Lawyers, Business Groups Square Off Over Lawsuit Reform,” Phila. Inquirer, Apr. 19, 2011, at C1.]
The notion that only a former legislator can provide the appropriate construct of an enactment begs the real question: should a court consider the legislative comments of the General Assembly while discussing the passage of a law when it is called upon to interpret the statute? Schroder should know that the General Assembly’s intent is best expressed through the plain language of the statute. See Commonwealth v. Fithian, 599 Pa. 180, 194, 961 A.2d 66, 74 (2008). And, therefore, when the words of a statute are clear and unambiguous, there is no need to look beyond the plain meaning of the statute “under the pretext of pursuing its spirit.” See Commonwealth v. Conklin, 587 Pa. 140, 152, 897 A.2d 1168, 1175 (2006). Only when the words of a statute are ambiguous should a court even consider the intent of the General Assembly via the statutory construction factors found in Section Pa. C. S. A. Section 1921(c). See Commonwealth v. Brown, 981 A.2d 893, 897–98 (Pa. 2009). And, of course, there is no basis to assume that the “intent” of one former legislator is representative of the “intent” of the entire legislative body. Here, our appellate courts have correctly explained the limitations of the Fair Share Act (FSA) in Roverano v. John Crane, 226 A. 3d 526 (Pa. 2020) and Spencer v. Johnson, 249 A.3d 529 (Super. 2021). And, while others may disagree, a vitriolic public attack is inappropriate. The attack on the holdings in these cases are the following:
- The FSA should apply to multiple tortfeasors liable in strict liability—contrary to Roverano.
- The FSA should apply to apportion fault among multiple tortfeasors even when there is no evidence the plaintiff was comparatively at fault—contrary to Spencer.