PRINTER'S NO. 659 |
No. 5 Session of 1999
INTRODUCED BY THOMPSON, PICCOLA, BRIGHTBILL, WENGER, MOWERY, ARMSTRONG, ROBBINS, BELL AND WAUGH, MARCH 18, 2023 |
REFERRED TO JUDICIARY, MARCH 18, 2023 |
AN ACT 1 Amending Title 42 (Judiciary and Judicial Procedure) of the 2 Pennsylvania Consolidated Statutes, providing for a statute 3 of repose; further providing for comparative responsibility; 4 providing for product seller liability; further providing for 5 agreements to arbitrate; repealing the Uniform Contribution 6 Among Tort-Feasors Act; and providing limits on punitive 7 damages. 8 The General Assembly of the Commonwealth of Pennsylvania 9 hereby enacts as follows: 10 Section 1. Title 42 of the Pennsylvania Consolidated 11 Statutes is amended by adding a section to read: 12 � 5539. Statute of repose. 13 (a) General rule.--Except as provided in subsection (b), no 14 action brought to recover damages for death, for injury to 15 persons or property or for economic loss resulting from a 16 defective product may be brought against any person if the 17 action is commenced more than 15 years after any of the 18 following: 19 (1) The date of delivery of the product to the first 20 purchaser or lessee who is not engaged in the business of |
1 selling or leasing the product. 2 (2) The date of completion of the replacement or 3 addition of a new component, system, subassembly or other 4 part which was added to the product and which is alleged to 5 have caused death, injury to persons or property, or economic 6 loss. 7 (b) Exception.--Subsection (a) does not apply to any of the 8 following: 9 (1) An action brought under a written warranty which 10 would be enforceable under law but for the operation of this 11 section. 12 (2) An action against a manufacturer, seller or 13 distributor of the product or the manufacturer, seller or 14 distributor of any new component, system, subassembly or 15 other part of the product alleging a physical illness the 16 evidence of which did not appear in less than 15 years after 17 the first exposure to the product. 18 Section 2. Section 7102 of Title 42 is amended to read: 19 � 7102. Comparative [negligence] responsibility. 20 (a) General rule.--In all actions brought to recover damages 21 for [negligence resulting in] death [or], for injury to person 22 or property or for economic loss, the fact that the plaintiff 23 may have been guilty of contributory negligence shall not bar a 24 recovery by the plaintiff or his legal representative where 25 [such negligence] the causal responsibility of the plaintiff was 26 not greater than the causal [negligence] responsibility of the 27 defendant or defendants against whom recovery is sought, but any 28 damages sustained by the plaintiff shall be diminished in 29 proportion to the amount of [negligence] the causal 30 responsibility attributed to the plaintiff. In any action for 19990S0005B0659 - 2 - |
1 wrongful death or in any action in which the plaintiff's cause 2 of action is derived through another person, the causal 3 responsibility of the decedent or the person through whom the 4 claim is derived, if any, shall be imputed to the plaintiff. 5 (b) Recovery against joint defendant[; contribution].--Where 6 [recovery is allowed against more than one defendant,] causal 7 responsibility is attributed to more than one person, including 8 where a person has been found liable upon a theory of strict 9 liability, each defendant shall be liable only for that 10 proportion of the total dollar amount awarded as damages in the 11 ratio of the amount of his causal [negligence] responsibility to 12 the amount of causal [negligence] responsibility attributed to 13 all defendants. [against whom recovery is allowed. The plaintiff 14 may recover the full amount of the allowed recovery from any 15 defendant against whom the plaintiff is not barred from 16 recovery. Any defendant who is so compelled to pay more than his 17 percentage share may seek contribution.] The court shall enter 18 separate, several judgments in favor of the plaintiff and 19 against each defendant only for the amount for which that 20 defendant is liable. 21 (c) Elimination of joint and several liability.--A defendant 22 found responsible in an action brought to recover damages for 23 death, injury to person or property or economic loss shall not 24 be subject to joint and several liability. Except where a 25 contractual relationship permits, a defendant shall not have the 26 right to recover any portion of the damages assessed against him 27 from any other defendant. 28 (d) Apportionment of responsibility among nonparties; 29 effect.--For purposes of apportioning responsibility only, the 30 question of the causal responsibility of any person who is not a 19990S0005B0659 - 3 - |
1 party shall be submitted to the trier of fact upon appropriate 2 request and proofs by any party. The persons whose causal 3 responsibility may be determined pursuant to this subsection 4 include a person who is immune from suit or over whom 5 jurisdiction cannot be maintained, but do not include an 6 employer to the extent that the employer is granted immunity 7 from liability or suit pursuant to the act of June 2, 2023 8 (P.L.736, No.338), known as the Workers' Compensation Act. An 9 attribution of responsibility to a person as provided in this 10 subsection shall not be admissible or relied upon in any other 11 action or proceeding for any purpose. 12 (e) Effect of release, covenant not to sue or similar 13 agreement.--A release, covenant not to sue or similar agreement 14 entered into by a plaintiff and a person who is, or could be, a 15 defendant in an action for damages for death, injury to person 16 or property or economic loss, may discharge that person from all 17 further liability, but does not discharge any other person 18 liable with respect to the same cause of action unless the 19 release, covenant not to sue or similar agreement specifically 20 so provides. However, any damages to which the plaintiff is 21 entitled to recover shall be reduced by the largest of the 22 following: 23 (1) The released person's proportional share of the 24 plaintiff's damages as though the released person were a 25 defendant at the time judgment is entered. 26 (2) The amount paid to the plaintiff by the person 27 entering into the release, covenant not to sue or similar 28 agreement. 29 (3) The amount or proportion by which the release, 30 covenant not to sue or similar agreement provides that the 19990S0005B0659 - 4 - |
1 total damages of the plaintiff shall be released. 2 [(c)] (f) Downhill skiing.-- 3 (1) The General Assembly finds that the sport of 4 downhill skiing is practiced by a large number of citizens of 5 this Commonwealth and also attracts to this Commonwealth 6 large numbers of nonresidents significantly contributing to 7 the economy of this Commonwealth. It is recognized that as in 8 some other sports, there are inherent risks in the sport of 9 downhill skiing. 10 (2) The doctrine of voluntary assumption of risk as it 11 applies to downhill skiing injuries and damages is not 12 modified by subsections (a) and (b). 13 (g) Savings provision.--Nothing in this section shall be 14 construed in any way to create, abolish or modify a cause of 15 action or to limit a party's right to join another potentially 16 responsible party. 17 [(d)] (h) Definitions.--As used in this section the 18 following words and phrases shall have the meanings given to 19 them in this subsection: 20 "Defendant or defendants against whom recovery is sought." 21 Includes impleaded defendants. 22 "Plaintiff." Includes counterclaimants and cross-claimants. 23 Section 3. Title 42 is amended by adding a section to read: 24 � 7104. Liability rules applicable to product sellers. 25 (a) General rule.--Except as provided in subsection (b), in 26 a product liability action, a product seller other than a 27 manufacturer shall be liable for damages resulting in death, 28 injury to person or property or economic loss only if the 29 plaintiff establishes any of the following: 30 (1) The product which allegedly caused the harm 19990S0005B0659 - 5 - |
1 complained of by the plaintiff was sold by the product 2 seller, the product seller failed to exercise reasonable care 3 with respect to the product and the failure to exercise 4 reasonable care was a proximate cause of the harm complained 5 of by the plaintiff. For purposes of this paragraph, a 6 product seller shall not be considered to have failed to 7 exercise reasonable care with respect to the product based 8 upon an alleged failure to inspect a product where there was 9 no reasonable opportunity to inspect the product in a manner 10 which, in the exercise of reasonable care, would have 11 revealed the aspect of the product which allegedly caused the 12 harm complained of by the plaintiff. 13 (2) The product seller made an express warranty 14 applicable to the product which allegedly caused the harm 15 complained of by the plaintiff independent of an express 16 warranty made by a manufacturer as to the same product, the 17 product failed to conform to the seller's express warranty 18 and the failure of the product to conform to the seller's 19 express warranty caused the harm complained of by the 20 plaintiff. 21 (3) The product seller engaged in intentional wrongdoing 22 which was a proximate cause of the harm complained of by the 23 plaintiff. 24 (b) Exception.--In a product liability action, a product 25 seller shall be liable for harm caused by the product as though 26 the product seller were the manufacturer of the product if the 27 manufacturer is not subject to service of process under the laws 28 of any state in which the action might have been brought or if 29 the court determines that the plaintiff would be unable to 30 enforce a judgment against the manufacturer. 19990S0005B0659 - 6 - |
1 (c) Rental and leases.--Notwithstanding any other provision 2 of law, any person not excluded from the definition of product 3 seller who is engaged in the business of renting or leasing a 4 product shall be subject to liability pursuant to subsection 5 (a), but shall not be liable to a plaintiff for tortious act of 6 another solely by reason of ownership of such product. 7 (d) Certification of manufacturer identity.--In a product 8 liability action against a product seller, the product seller or 9 manufacturer may file an affidavit certifying the correct 10 identity of the manufacturer of the product which allegedly 11 caused the injury, death or damage. Due diligence shall be 12 exercised in providing the plaintiff with the correct identity 13 of the manufacturer or manufacturers. 14 (1) Upon filing the affidavit, the product seller shall 15 be relieved of all strict liability claims unless any of the 16 following applies: 17 (i) The identity of the manufacturer given to the 18 plaintiff by the product seller was incorrect. Once the 19 correct identity of the manufacturer has been provided, 20 the product seller shall again be relieved of all strict 21 liability claims, subject to the provisions of paragraph 22 (3). 23 (ii) The manufacturer has no known agents, facility 24 or other presence within the United States. 25 (iii) The manufacturer has no attachable assets or 26 has been adjudicated bankrupt and a judgment is not 27 otherwise recoverable from the assets of the bankruptcy 28 estate. 29 (2) A product seller shall be liable under any of the 30 following circumstances: 19990S0005B0659 - 7 - |
1 (i) The product seller has exercised some 2 significant control over the design, manufacture, 3 packaging or labeling of the product related to the 4 alleged defect in the product which caused the harm 5 complained of by the plaintiff. 6 (ii) The product seller knew or reasonably should 7 have known of the defect in the product which caused the 8 harm complained of by the plaintiff or the plaintiff can 9 affirmatively demonstrate that the product seller was in 10 possession of facts from which a reasonable person would 11 conclude that the product seller had or should have had 12 knowledge of the alleged defect in the product which 13 caused the harm complained of by the plaintiff. 14 (iii) The product seller created the defect in the 15 product which caused the harm complained of by the 16 plaintiff. 17 (3) The commencement of a product liability action based 18 in whole or in part on the doctrine of strict liability 19 against a product seller shall toll the applicable statute of 20 limitations with respect to manufacturers who have been 21 identified pursuant to the provisions of paragraph (1). 22 (e) Definitions.--As used in this section, the following 23 words and phrases shall have the meanings given to them in this 24 subsection: 25 "Firm." Any of the following: 26 (1) A person other than a natural person. 27 (2) An affiliated entity that conducts the practice of a 28 profession. 29 "Manufacturer." Any of the following: 30 (1) A person who designs, formulates, produces, creates, 19990S0005B0659 - 8 - |
1 makes, packages, labels or constructs any product or 2 component of a product. 3 (2) A product seller with respect to a given product to 4 the extent the product seller designs, formulates, produces, 5 creates, makes, packages, labels or constructs the product 6 before its sale. 7 (3) A product seller not described in paragraph (2) 8 which holds itself out as a manufacturer to the user of the 9 product. 10 (4) A United States domestic sales subsidiary of a 11 foreign manufacturer if the foreign manufacturer has a 12 controlling interest in the domestic sale subsidiary. 13 "Product liability action." A claim or action brought by a 14 plaintiff for harm caused by a product, irrespective of the 15 theory underlying the claim, other than an action for harm 16 caused by breach of an express warranty. 17 "Product seller." 18 (1) A person who, in the course of business conducted 19 for that purpose, does any of the following: 20 (i) Sells, distributes, leases, installs, prepares 21 or assembles a manufacturer's product according to the 22 manufacturer's plan, intention, design, specifications or 23 formulations. 24 (ii) Blends, packages, labels, markets, repairs, 25 maintains or otherwise is involved in placing a product 26 in the line of commerce. 27 (2) The term does not include any of the following: 28 (i) A seller of real property. 29 (ii) A provider of professional services if sale or 30 use of a product is merely incidental to the transaction 19990S0005B0659 - 9 - |
1 and the essence of the transaction is furnishing 2 judgment, skill or services. 3 (iii) A person who acts in only a financial capacity 4 with respect to sale of a product. 5 "Profession." The performance of any type of service to the 6 public that requires, as a condition precedent to performance of 7 the service, obtaining from the Supreme Court of Pennsylvania or 8 a licensing board or commission under the Bureau of Professional 9 and Occupational Affairs in the Department of State a license, 10 registration, certificate, permit, admission to practice or 11 other legal authorization. All physicians, as defined in 1 12 Pa.C.S. � 1991 (relating to definitions), shall be deemed to be 13 from the same profession. 14 "Professional." Any of the following: 15 (1) An individual holding a license, registration, 16 certificate, permit, admission to practice or other legal 17 authorization to practice a profession. 18 (2) A firm owned by members of a profession through 19 which entity a profession is practiced. 20 (3) An owner of an equity interest in a firm owned by 21 members of a profession through which entity a profession is 22 practiced. 23 (4) An employee or agent of a professional acting in an 24 individual capacity or liable vicariously or under the law of 25 agency. 26 Section 4. Section 7303 of Title 42 is amended to read: 27 � 7303. Validity of agreement to arbitrate; application to 28 certain parties. 29 (a) Written agreement valid.--A written agreement to subject 30 any existing controversy to arbitration or a provision in a 19990S0005B0659 - 10 - |
1 written agreement to submit to arbitration any controversy 2 thereafter arising between the parties is valid, enforceable and 3 irrevocable, save upon such grounds as exist at law or in equity 4 relating to the validity, enforceability or revocation of any 5 contract. 6 (b) Other parties.--An individual, corporation or other 7 entity not a signatory to an arbitration agreement may join in 8 the arbitration, at the request of a party, with all of the 9 rights and obligations of the original parties. No signatory to 10 an arbitration agreement may refuse to arbitrate because of the 11 addition of participants pursuant to the provisions of this 12 subsection. Additional participants shall agree in writing to be 13 bound by the arbitration proceedings and the arbitration 14 agreement and thereafter shall be treated as parties. 15 (c) Employees of parties.--The employees of a party to 16 arbitration who are involved in a dispute because of their 17 status as employees of the party shall be deemed to be parties 18 to the arbitration agreement executed by their employer. An 19 arbitration agreement executed by the employer shall bar an 20 action at law against the employer based upon conduct of an 21 employee involved in the dispute as a result of action taken by 22 the employee in the course and conduct of employment. 23 (d) Minor children.--A minor child shall be bound by an 24 arbitration agreement executed on behalf of the child by a 25 parent or legal guardian. 26 (e) Applicability.--The provisions of this section shall 27 apply to all arbitrations conducted pursuant to this subchapter 28 and Subchapter B (relating to common law arbitration). 29 Section 5. Subchapter B of Chapter 83 of Title 42 is 30 repealed. 19990S0005B0659 - 11 - |
1 Section 6. Title 42 is amended by adding a section to read: 2 � 8372. Limitations on recovery of punitive damages. 3 (a) Standard for award.--To recover punitive damages, a 4 plaintiff must prove beyond a reasonable doubt that the 5 defendant acted with an evil motive, with reckless and 6 outrageous indifference to a highly unreasonable risk of harm or 7 with knowing indifference to the rights and safety of others. A 8 showing of gross negligence is insufficient to support an award 9 of punitive damages. In assessing punitive damages, the trier of 10 fact may consider the nature of the defendant's conduct, the 11 extent and type of the harm to the claimant that the defendant 12 caused or intended to cause and the wealth of the defendant. No 13 punitive damages may be awarded against a defendant who is only 14 vicariously liable for actions of an agent unless it can be 15 shown beyond a reasonable doubt that the party knew of and 16 directed the conduct of the agent. No punitive damages may be 17 awarded with the intent of changing conduct in another 18 jurisdiction if the conduct to be changed is lawful in the other 19 jurisdiction. If punitive damages are awarded against more than 20 one defendant, the court shall allocate the total amount of the 21 award among the applicable defendants based on each defendant's 22 percentage of fault. 23 (b) Amount of award.--In an action alleging damages for 24 death, for injury to person or property or for economic loss, 25 punitive damages may be awarded only if actual damages are 26 awarded. The amount of punitive damages shall not exceed the 27 greater of 200% of the compensatory damages awarded or $250,000. 28 Actions brought to recover damages for death, for injury to 29 person or property or for economic loss shall include all 30 product liability claims regardless of the theory or doctrine on 19990S0005B0659 - 12 - |
1 which they are based. For purposes of this section, the term 2 "punitive damages" shall include punitive damages, exemplary 3 damages and special damages. 4 (c) Substantive right to bifurcate proceeding.-- 5 (1) In an action which includes a claim for punitive 6 damages, a defendant shall have the substantive legal right 7 to have issues relating to punitive damages tried separately 8 from other issues. 9 (2) In an action seeking damages for death, for injury 10 to person or property or for economic loss, if punitive 11 damages are claimed, a praecipe to strike punitive damages 12 may be filed. Upon filing a praecipe to strike punitive 13 damages, an order shall be issued striking without prejudice 14 the claim for punitive damages, which shall toll the statute 15 of limitations as to the party filing the praecipe until the 16 earlier of 45 days after the close of discovery, the time 17 period set forth in paragraph (3) or the conclusion of the 18 action. At the close of discovery, but before the beginning 19 of the trial, the party who filed the punitive damage claim 20 may move to reinstate the punitive damages claim. The party 21 claiming punitive damages shall have no right to discover the 22 financial assets or wealth of a defendant who filed a 23 praecipe to strike punitive damages until the claim has been 24 reinstated. Upon the filing of a motion that a punitive 25 damage claim be reinstated, if the court determines that the 26 evidence supports a prima facie case for imposition of 27 punitive damages, then the punitive damages claim shall be 28 reinstated. 29 (3) If a request is made to have the issues relating to 30 punitive damages tried separately from the other issues in 19990S0005B0659 - 13 - |
1 the action, the trier of fact shall first hear evidence 2 relevant to and render a verdict upon the defendant's 3 liability for compensatory damages and the amount of 4 compensatory damages. If the trier of fact makes an award of 5 compensatory damages, the same trier of fact shall 6 immediately hear additional evidence relevant to, and render 7 a verdict upon, the defendant's liability for punitive 8 damages and the amount of any punitive damages. If no award 9 of compensatory damages is made, the claim for punitive 10 damages shall be dismissed. If the defendant requests a 11 separate proceeding concerning liability for punitive 12 damages, evidence relevant only to the claim of punitive 13 damages shall be inadmissible in any proceeding to determine 14 whether compensatory damages are to be awarded. 15 (d) Repetitive awards.-- 16 (1) Punitive damages shall not be awarded in a civil 17 action based on the same act, omission or course of conduct 18 for which punitive damages have already been awarded against 19 the same defendant in a Federal or state court in any 20 jurisdiction unless one of the following occurs: 21 (i) The court determines in a pretrial hearing that 22 the claimant will offer new and substantial evidence of 23 previously undiscovered wrongful behavior on the part of 24 the defendant, other than injury or loss to the claimant 25 or others, that on its face might justify an additional 26 award of punitive damages. 27 (ii) The act, omission or course of conduct occurred 28 subsequent to a final judgment of punitive damages, paid 29 in full, with respect to the same type of act, omission 30 or course of conduct. 19990S0005B0659 - 14 - |
1 (2) A court permitting a claim for or award of punitive 2 damages under this section shall comply with all of the 3 following: 4 (i) Make specific findings of fact on the record to 5 support the claim or award. 6 (ii) Reduce the amount of the punitive portion of 7 the damages awarded by the sum of amounts of punitive 8 damages previously entered against and resolved through 9 satisfaction, payment or otherwise by the defendant in 10 prior actions in another Federal or state court in any 11 jurisdiction. 12 (iii) Prohibit disclosure to the jury of the court's 13 determination and action under this paragraph. 14 (e) Exception.--The limitations contained in this section 15 shall not apply to an action alleging damages for death, injury 16 to person or property or economic loss where the action relates 17 to an incident or occurrence for which an individual has been 18 charged and convicted of a criminal act for which a period of 19 incarceration is or may be a part of the sentence. 20 (f) No additional cause of action.--Nothing in this section 21 shall be construed to create a cause of action for punitive 22 damages or to permit the recovery of punitive damages in 23 circumstances where the award of punitive damages is not 24 otherwise expressly authorized by law. Punitive damages may be 25 awarded in connection with a civil cause of action created or 26 implied by a particular statutory provision only if the 27 statutory provision expressly authorizes an award of punitive 28 damages or the Supreme Court of Pennsylvania in a published 29 opinion issued before the effective date of this act has held 30 that punitive damages may be awarded in connection with that 19990S0005B0659 - 15 - |
1 particular type of cause of action. 2 Section 7. This act shall apply to all pending actions in 3 which trial has not commenced on the effective date of this act. 4 A civil action or proceeding to which 42 Pa.C.S. � 5539 applies 5 which is not fully barred by statute on the day prior to the 6 effective date of this act and as to which the period for 7 commencing suit has been reduced by 42 Pa.C.S. � 5539 may be 8 commenced within one year after the effective date of this act, 9 or within the period previously set for commencing suit, 10 whichever is shorter. 11 Section 8. This act shall take effect immediately. C17L42RLE/19990S0005B0659 - 16 - |