                           [J-10A&B-2019][M.O. - 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 12/28/17 at No. 2837
                                             :   EDA 2016 affirming in part, reversing in
                                             :   part and remanding the order entered
                v.                           :   on 7/27/16 in the Court of Common
                                             :   Pleas, Philadelphia County, Civil
                                             :   Division at No. 1123 March Term, 2014
JOHN CRANE, INC., AND BRAND                  :
INSULATIONS, INC.,                           :
                                             :
                     Appellees               :   ARGUED: March 6, 2019

WILLIAM ROVERANO,                            :   No. 27 EAP 2018
                                             :
                     Appellant               :   Appeal from the Judgment of Superior
                                             :   Court entered on 12/28/17 at No. 2847
                                             :   EDA 2016 affirming in part, reversing in
                v.                           :   part and remanding the order entered
                                             :   on 7/27/16 in the Court of Common
                                             :   Pleas, Philadelphia County, Civil
JOHN CRANE, INC.,                            :   Division at No. 1123 March Term, 2014
                                             :
                     Appellee                :
                                             :
                                             :   ARGUED: March 6, 2019


                      CONCURRING AND DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                   DECIDED: February 19, 2020


      I join Part IV of the majority opinion, which holds that, under the Fair Share Act,

bankrupt entities must be included on a verdict slip upon submission of “appropriate
requests and proofs,” 42 Pa.C.S. §7102(a.2), and I support the affirmance of the award

of a new trial for apportionment purposes. In all other respects, I respectfully dissent.

       On the issue of comparative versus per capita liability allocation among strictly

liable defendants, I find that the majority places undue reliance on the inertia associated

with previously prevailing common law principles and attributes insufficient weight to the

clear indicia of the Legislature’s intent to proceed in a new direction by implementing a

fair share or comparative responsibility regime.

       Addressing the first issue presented, I agree with the Superior Court that, “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.” Roverano v. John

Crane, Inc., 177 A.3d 892, 906 (Pa. Super. 2017) (per curiam). Indeed, I believe that if

the General Assembly had intended to do the opposite within the contours of a “Fair

Share Act” -- i.e., to maintain a liability allocation regime for strict liability cases that was

not divided on comparative or fair share basis -- it would have so stated. This would

seem to be all the more so given the substantial overlap between Section 7102(a.1)(1)

and its predecessor. See id. at 907 (“[T]he 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.”).1

1The Superior Court offered the following apt comparison of the language of Section
7102(a.1)(1) to its predecessor:

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

            to--
(continued…)
                            [J-10A&B-2019][M.O. – Mundy, J.] - 2
       As the Superior Court explained:

              The Legislature’s placement of the “including actions for
              strict liability” clause is revealing. If, as [the plaintiffs]
              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
              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).
Id.. And, as the intermediate court further related, the legislative history is also strongly

supportive of the straightforward application of the statute to provide for comparative

liability as the general rule. See id. at 908 (referencing the remarks of the underlying

bill’s floor manager, the Honorable Michael C. Turzai, to the effect that comparative

appointment of strict liability claims is required by the legislation).




(…continued)

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

Id. at 907. Because the only change in the formula was the replacement of “causal
negligence” with “liability” to account for the inclusion of strict liability claims, the
conclusion naturally followed that “the Legislature 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 done previously under the comparative negligence statute.”
Id.


                           [J-10A&B-2019][M.O. – Mundy, J.] - 3
       Moreover, as particularly highlighted by Appellees’ amici, apportionment of

comparative responsibility, under the Fair Share Act, is explicitly to be undertaken “by

the trier of fact.” 42 Pa.C.S. §7102(a.2). Imposition of per capita liability under the

previous common law scheme, on the other hand, is a mechanical matter of

mathematical division occurring by operation of law and implemented by the court.

Again, from my point of view, the General Assembly’s intentions on the subject of

comparative responsibility in the context of both negligence and strict liability claims are

manifest.

       I also respectfully disagree with the majority’s conclusion that comparative

apportionment of liability is impossible in asbestos cases. See Majority Opinion, slip op.

at 25. I have previously observed that, in light of the immense uncertainties involved in

assessing actual, product-specific causation in many asbestos cases, the courts have

come to accept abstract assessments of increased risk as proxies for traditional

substantial-factor causation. See Rost v. Ford Motor Co., 637 Pa. 625, 668, 151 A.3d

1032, 1057 (2016) (Saylor, C.J., dissenting); accord Majority Opinion, slip op. at 6

(reflecting the risk-based analysis underlying Appellants’ case at trial). Along these

lines, because of all of the impediments to any sort of rational determination of dose in

long-latency, toxic tort cases involving frequently undocumented, unquantified, and

sometimes small exposures to many different sources of asbestos occurring long ago in

the past, the platitude that “‘[r]ough approximation’ is no substitute for justice,” Majority

Opinion, slip op. at 26 (citation omitted), becomes quite meaningless in the asbestos

litigation landscape. In this respect, I submit that “rough approximation” is at best a

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

Pennsylvania and elsewhere.




                          [J-10A&B-2019][M.O. – Mundy, J.] - 4
       Given that risk-based assessments are being accepted to support jury

determinations of substantial-factor causation, I see no reason why the same litmus

cannot be employed to support comparative responsibility assessments by jurors, as

the Fair Share Act plainly contemplates. See 42 Pa.C.S. §7102(a.2) (providing for the

presentation of support for comparative responsibility assessments “to the trier of fact”).

By way of example, as I read the statute, it was intended to permit a factfinder to

apportion liability differently between a manufacturer of loose insulation containing

friable, amphibole asbestos to which a plaintiff may have been exposed on a daily basis

in an industrial workplace for decades, and a local auto parts store which may have

carried brake shoes (among its inventory of thousands of other products) containing

asbestos encapsulated in resin, which the same plaintiff may have occasionally installed

on his personal vehicles.

       Furthermore, the majority’s analysis appears to overlook that apportionment

assessments are generally imprecise ones in many contexts, but they are nevertheless

routinely entrusted to jurors. See, e.g., Brief for Appellee Brand Insulations, Inc., at 40

(citing cases); Brief for Appellee Brief for Appellee John Crane, Inc., at 36 (same);

accord Brief for Amici Pa. Chamber of Bus. & Indus., et al. at 5 (“Juries in states with

some of the nation’s busiest asbestos dockets routinely engage in percentage share

apportionment in asbestos cases.” (citations omitted)).

       Again, I emphasize that substantial fairness concerns pervade on both sides in

mass tort scenarios, particularly where they involve long-latency diseases.        Accord

Gregg v. V-J Auto Parts, Co., 596 Pa. 274, 291-92, 943 A.2d 216, 226-27 (2007).

       For the above reasons, I would affirm the order of the Superior Court.




                            [J-10A&B-2019][M.O. – Mundy, J.] - 5
