Baker v. AC&S, INC.

(еvidence of repeated may abuse be admit- suppress the evidence obtained following kill). ted to prove intent to For above arrest, by admitting appellant’s reasons, we appellant’s find second issue testimony Wright, Rodney Pamela meritless. Further, appel- Clark and Jared Monk. lant’s weight argument of the evidence ¶ 19 Lastly, appellant asserts Therefore, waived. we affirm the judg- against his conviction was the weight ment of the lower court. of the evidence. Since appellant first present raised this issue in it appeal, Judgment of sentence affirmed. has been waived under Pa.R.Crim.P. 1124A(1). Rule 1124A on became effective 1, 1998,

January provides, pertinent

part:

Rule Challenges 1124A.

Weight of the Evidence

(1) A claim verdict was the weight evi- BAKER, Suzanne Administratrix of the dence shall be raised with the Baker, Estate of Albert J. and Wife

trial judge in a for a motion new Baker, Appellants, of Albert J. trial: v. (a) record, on orally, any time AC&S, INC., al., Appellee. et sentencing; before (b) by written motion at time Baker, Suzanne Administratrix Es- sentencing; before Baker, tate of Albert J. and Wife (c) in a post-sentence motion. Baker, Appellees. of Albert J. Id. The explains, comment Rule 1124A The purpose .of this rule is to make it AC&S, Inc., al., Appellant. et clear that a challenge to the weight the evidence must be raised with the Superior Pennsylvania. Court of judge trial itor will be Appel- waived. late review a weight of the evidence Arguеd 28, Sept. 1998. claim is limited to a review 30, Filed March judge’s exercise of discretion. trial, Id. appellant’s Since conviction and

sentencing all occurred after Rule 1124A effective,

became except we cannot him requirements.9 Accordingly,

from its

issue been present has waived for failing it first to the lower court. Common- Cf Monroe, 618,

wealth v. 373 Pa.Super. (1988) (under

A.2d 113 rule prior requiring motions,

post argument verdict that ver-

dict was weight the evidence it waived since was not in post- raised motions).

verdict sum, 20 In we conclude that

lower court did not err refusing to However, dency Appellant’s place January case. all such is- 9. trial took on 26- question [appellant's] sues related to the January He was convicted on intent to harm the victim. and sentenced March 5/,1/98, Opinion,

Trial Court at n. 1.

H41 below, re-we the reasons set forth For remand part and affirm in part, verse proceedings. for further FACTS: wife, ¶2 Su his J. Baker and Albert zanne, theories of action under filed civil sev negligence of asbes sellers eral manufacturers and/or seeking damages tos-containing products, exposure resulting from Mr. Baker’s of consor and Mrs. Baker’s loss asbestos filed on complaint, Bakers’ first tium. The 17, 1989, that Mr. Baker January alleged pursuant his pleural plaques lungs; on had v. holding to this Court’s Johns Giffear 327, 632 Corp., Pa.Super. Manville McElhone, R. for Philadelphia, Bruce (1993) (en banc),1 the Bakers’ Baker. prejudice without case was dismissed Rowan, for Philadelphia, Robert W. However, January, Mr. Baker later 1994. AC&S, Inc. mesothelioma developed malignant diffuse Greitzer, Greit- Philadelphia, Martin for court, and, the Bakers with leave Locks, zer and amicus curiae. complaint and reactivated amended their Cohen, City, Anne E. New York for 31, on 1995. The trial their case March Cohen, Podesta and curiae. amicus reverse-bifurcated, as are all asbestos was County. The dam Philadelphia actions McEWEN, Judge, Before President and phase tried before the Honorable ages was CAVANAUGH, KELLY, SOLE, DEL Mirarchi, jury; Jr. a on June and Charles EAKIN, JOYCE, STEVENS, 1995, to Mr. jury awarded million $2 LALLY-GREEN, SCHILLER and JJ. $200,000 Mrs. injuries his Baker for SCHILLER, Several Baker for loss of consortium.2 J.: the case were dismissed from defendants ap- 1 This case involves consolidated in ad summary judgment; for on motions AC&S, peals judgments against from Inc. dition, with Owens- the Bakers settled Baker, entered in favor of Suzanne as ad- Pfizer, Corporation, Corning Fiberglas ministratrix of the of her deceased estate Inc., Corpo Management Claims Asbestos right. husband and in her own Mrs. Bak- (“ACMC”) Gyp (formerly National ration er from these appeals judgments, alleging sum), Injury the Manville Personal molding that the trial court erred in (“the Trust”) Manville Settlement Trust cross-appeals verdict. AC&S from these The tortfeasor releases.3 pursuant judgments, alleging that there was insuffi- before Honor- liability. phase was tried cient evidence to establish its was a tanto Corp., The Trust release 1. v. 3. Manville Johns-Manville Giffear (era (1993) set-off, release, providing 632 A.2d 880 or reduction a Pacor, Inc., banc), verdict, 'dsub nom. Simmons share in on account of Trust’s aff (1996), 674 A.2d 232 this Court paid under of the consideration the amount unaccompanied pleural thickening, held ($30,000). The three tort- other impairment, or dis symptoms, manifest releases, providing feasors received Pennsyl ability cognizable not a claim in respective a on account their vania. shares in the amount of allocated shares liability. Septem- died of mesothelioma on 2. Mr. Baker 26, 1995, and Suzanne Baker was thereaf- ber party as a for Mr. Baker. ter substituted DiNubile, Jr., J. sitting able Victor provisions without the Uniform Contribution jury, September (“UCATA”),6 16 and Tortfeasors Act Among only present law, defendant at the applicable case tanto release AC&S, phase was an contracting insulation executed in favor of the company, against pro- whom Mrs. Baker Manville Trust should enforced accord- ceeded on a liability theory. Based ing express to its terms reduce the on the evidence presented, trial court plaintiffs’ recovery against the non-settling AC&S, Pfizer, found Owens-Corning, tortfeasor.7 From this issue we discern ACMC, jointly and Manville Trust lia- question: more fundamental whether un- injuries. ble the Bakers’ der unique circumstances of this case the plaintiffs non-settling or the tortfeasor ¶ 3 The trial court molded verdict to should bear the burden the shortfall reflect the shares the settling tort- between the consideration so, feasors. In doing thе trial court disre- ($30,000) Manville Trust and its allocated garded the terms Bakers’ releases the damages awarded to the Instead, respect these tortfeasors. ($440,000), $410,- difference of the trial interpreted applicable state argues Mrs. Baker that AC&S law, consistent with terms of Man- should Specifically, shortfall. Ap- settlement, ville Trust to dam- require that pellant argues that the trial court erred in ages strictly among liable defendants be enforcing the tanto release be- basis, on apportioned “pro a rata” with cause it misinterpreted provisions certain each defendant more paying no than its of the Manville Trust Disposition Process “pro Accordingly, rata” share.4 AC&S (“TDP”) concerning and case law allocation required was to pay only one-fifth of the of and enforcement of releases. Baker, damages total awarded to Mrs. or a responds AC&S that AC&S not be should $440,000. total of The trial court denied required pay this shortfall because the parties’ post-trial both motions and en- provisions applicable the TDP and state $400,000 tered in the judgment amount of law a require Pennsyl- set-off in a $17,386.30 plus delay damages in favor vania strict liability regard- asbestos action $40,000 Mr. Baker’s estate and in favor less of the terms of the release.8 Mrs. Baker for loss of consortium.5 timely These cross-appeals followed. The Manville Trust and the TDP DISCUSSION: ¶ begin 5 We by our discussion review- I. The Appeal Baker ing background the historical of the Man-

¶ 1988, presents Mrs. Baker an issue ville Trust and the TDP.9 In the of first impression: whether the context Manville Trust was created to all action, of a pursuant to the brought health claims against the Johns- verdict, phrase "pro reviewing 4. trial court the non-jury used rata” 8. In a we must ‍‌‌​​‌​‌‌‌​‌‌‌​​‌‌‌‌​​​‌​‌‌‌‌​​​​​​​‌‌​​‌​​‌​​​‌​‍equally among to mean findings divided liable the determine whether the of the trial tortfeasors. supported court are the evidence and the whether trial court committed error in properly any application 5. The trial declined to award of law. Castetter v. "B"Mr. delay damages Storage, (Pa.Super.1997). 699 A.2d 1268 on Mrs. Baker’s loss of consor- Moreover, Truck, tium the claim. Anchorstar v. Mack trial court’s of law conclusions 177, 1120(1993). courts, binding appellate are not on the duty whose it is to determine there whether 9, 1976, 586, 142, July proper application 6. Act was P.L. the law to the facts No. 27, 1978, Drug §§ effective the trial June Pa.C.S. 8321 et court. Thatcher's Store of Goshen, seq. Supermar- West Inc. Consolidated Inc., kets, (1994). 535 Pa. 636 A.2d 156 Appellant 7. Since executed rata releases tortfeasors, settling background gleaned three other the This historical is from reduction in on account of allo- opinion approving verdict federal district courts’ cated shares of not at issue. the tеrms of the See settlement. n. infra.

H45 (“Manville”) available re- to maximize the assets Corporation as a Manville of Trust exposure. Beneficiaries beneficiaries. sult asbestos and future present Trust included ¶ they are parties agree 7 The manufac- as well as other health claimants Manville Trust by the terms of the bound products with claims turers asbestos TDP, TDP that the and the settlement was for contribution. It against Manville actions, the case sub such as applies 83,000 100,- that approximately estimated — ren- liability verdict was judice, where the claims would be filed The TDP February after dered However, significantly because Trust. Appellee is in this case because relevant (240,000by filed Decem- more claims were reflect a in the verdict to seeking reduction ber, 1994), claims was and the value Trust as a of the Manville involvement the Trust became higher expected, than to the Man- responsible Pursuant party. November, 1990, a ac- class insolvent. settlement, rights of the ville Trust Trust, a began tion restructure governed by regard in that are parties was agreement settlement proposed TDP. therefore turn provisions We However, was this settlement reached. analysis applicable our review of challenged some health claimants terms of the TDP. co-defendants, re- and the matter was H of the Under Section proceedings. for furthеr manded all pending to dismiss agreed beneficiaries remand, Following ap- the court The TDP estab- claims Trust. designation of six subclasses proved (“matrix”) of asbestos- lished schedule present consisting of and future beneficia- values; categories and related disease Trust, stipulation of set- ries and a can obtain the scheduled health claimant January approved tlement an individual value for claim can seek time, By 1995.10 that the Trust’s liabilities pro- claim The TDP further valuation.11 billion, in of and the were excess $6.7 pay percentage that Trust will vided the estimated to be be- projected aon current basis.12 Mr. of this value billion; Trust as- tween and the $25 $21 mesothelioma was rated Baker’s claim for sets, however, were no more than $2.5 scheduled val- highest category in the Trust, the restructuring billion. Without ues; the to his settlement with pursuant equitable not be able to com- it would Trust, value of his claim was liquidated the any to Trust beneficiaries. pensation $30,000, $300,000, 10% he was or and goal The ultimate of the settlement was value. that claimants in the equally all rights 9 governs The TDP also by imposed the Trust’s limited burdens and co-defendant as the health claimant parties adopted fund status. The a Trust and distributors fol bestos manufacturers (“TDP”) to Distribution Process accom- claimant’s settlement with lowing a health goal by claimants— plish paying that all Trust, law in some re claimants, changing stаte whether asbestos health co-de- right First, has no a co-defendant spects. an fendants or distributors —over time Trust, except in values, against the of contribution claims’ equivalent share applicable circumstances not by significantly the Trust’s limited reducing and Second, relin exchange in expenses and in order here.13 operating litigation TDP, B. 11. Section & Southern Districts 10.In re Joint Eastern (E. Litigation, 473 & F.Supp. Asbestos 878 S.D.N.Y.1995), TDP, part, part, Currently, percent- in 78 rev’d Section G.l. aff'd 10%; remand, (2d Cir.1996), may adjusted percentage be age 929 F.3d 764 supra, (E. S.D.N.Y.1996), Findley, at 494. in the future. without F.Supp. 1 & aff'd (2d Cir.1996) F.3d op., and 100 100 F.3d 944 Cir.1996) (2d (hereinafter "Findley"). by claims permits contribution 945 13. The TDP against only where Trust the Trust and the stipulation The of settlement co-defendants liquidated, (“TDP”) underlying been claim has not are annexed Distribution Process permitted trial court has or where the opinion. that 1146

quishing its right implead applicable the Trust in law. an Following review claimant, any litigation health extensive review of the law of contribution co-defendant the right has to ask Pennsylvania, and we set-off conclude “legally to treat the Trust as a responsible Pennsylvania properly fits most tortfeasor” without the introduction fur H.3(f), category “multiple a state with set- Third, proof.14 ther if the health claimant off rules.” co-defendant, obtains a verdict can co-defendant obtain a “set-off’ Pennsylva- Contribution and Set-off in respect reduction in verdict in to the Trust nia whether or not the claimant’s direct claim law, 11 it Pennsylvania Under the Trust has been resolved.15 well-established that if set-off is the tortious con measured reference to applicable local law.16 duct persons of two or more combines single ap cause a harm which cannot be ¶ 10 Section H of the TDP creates portioned, are actors tortfeasors (1) tanto, (2) categories five of states: they may even though have acted indepen rata, (3) apportionment, allocation or Market, dently. Kovalesky Rug v. Giant (4) (5) liability, several multiple and (1993); Pa.Super. 422 618 A.2d 1044 (b), (c), (d), (e), § rules. H.3 Donovan, Capone 332 Pa.Super. v. (f).17 The TDP does not expressly cate (1984). 1249 A.2d Joint tortfeasors gorize Pennsylvania, any state. other are, definition, jointly severally lia Indeed, the specifi federal district courts ble to injuries. for his or her cally stated that the rights and duties Imposition Pa.C.S. parties under H Section of the TDP injured party several enables the would decided the state courts inter satisfy an judgment against entire preting the TDP accordance with local tortfeasor, one if even wrongdoing law. In re & Joint Eastern Southern only tortfeasor contributed a small Litigation, Districts F.Supp. Asbestos (E. S.D.N.Y.1995). part of the harm inflicted. & Glomb According Glomb, ly, order to appropriate determine (1987) (en banc), denied,

category Pennsylvania into appeal falls un 517 Pa. (1988). TDP, 623, Thus, der it necessary is us 538 A.2d 876 TDP, H.3(d)(ii)(B), parties legally set-оff claim. Section responsible the sors, to be tortfea- H.4(a). However, set-off, applicable the Trust states law provides), that if so includ- reduction, states, clearly preferred or verdict ing parties. judg- over released In such purposes satisfying against nonsettling contribution for co-de- ments defendants are TDP, reduced, against law, fendant claims the Trust. provided by by Sec- applicable tion H.2. pro either the rata share attributable to re- parties paid agreed leased or the amount or TDP, 1(d), H.2(a). 14. H. Section by parties.... paid to be released (d) apportionment Allocation or states. TDP, (c), 15. Section H.l H.2. apportionment provide or Allocation states any judgment that amount be shall TDP, 16. H.3. Section apportioned reduced with reference to the parties.... share of released or absent provides, 17. Section H.3 the TDP in rele- (e) ap- Several states. Where the part, vant as follows: plicable provides state or other law for sev- (b) (as distinguished joint Pro tanto states. Pro tanto are states eral from liability) any judgment against part those in a non- and several for all or aof action,.... settling by defendant is reduced the amount cause of (f) paid agreed by multiple paid or to be a released In States rules. states, party.... (pro some different set-off rules tan- (c) tо, states, pro govern apportionment), In rata or Pro rata states. rata dif- equally among parts total is divided all ferent causes of action or thereof or damages_ fact defendants found finder be different elements (or legally responsible agreed by § tortfeasors H.3.

H47 by which the joint any proportion amount or imposes if and several total claim provides release joint tort- liability, only and if one of the than the con- greater if shall be reduced in- financially feasors is responsible, paid. sideration jured party attempt can recover against full measure of damages § release 42 8326. The Pa.C.S.

single financially responsi- source. tort- settling relieve the plaintiff does not ble tort-feasor who satisfies than more contribution to anoth- making feasor from joint his equitable or her share of the given the release is er tortfeasor unless recovering liability then bears the risk of the other tortfeasor right before the or has accrued responsi- monetary excess from his her less secure contribution the ex- ble and it a reduction to provides fellow tort-feasors. rata settling tortfeasor’s tent of (citations omitted). Id. 530 A.2d 1365 recoverable all damages share of law, 12 At common release § 42 other tortfeasors. Pa.C.S. other tortfea tortfeasor released all Further, not entitlеd a tortfeasor case, regardless parties’ sors until contribution from another tortfeasor Roth, 270, intent. Hilbert v. Pa. 149 395 lia- discharged common he or she has (1959); Pennsylvania A.2d 648 Anstine v. bility than or her more his Co., 547, Railroad Pa. 43 109 352 however, thereof; settling tortfea- (1945); Fox, 209, 192 Thompson v. Pa. 326 only from a may sor seek contribution (1937). Moreover, 107 no A. there was has liability he she tortfeasor whose right of contribution tortfea between extinguished. 42 Pa.C.S. Gamble, Borough sors. v. 201 Oakdale well- Pennsylvania, 14 it is 289, (1902); Pa. A. 50 971 Turton v. Powel is to settled that the effect of the release Co., 406, ton 1053 Electric 185 Pa. A. ordinary meaning be determined (1898). Thus, if parties two were “[e]ven 239, Fay, v. 488 Pa. language. Wolbach inju equally responsible for the (1980); v. 412 A.2d 487 Hasselrode Gna ry, one could held liable the entire (1961). 549, 172 gey, 404 Pa. A.2d 764 loss while the other went scot free.” Mat Thus, signs general party who Sears, Co., tia v. & Roebuck par discharging all claims and all waiving (1987), 531 A.2d de appeal su ties from thereafter precluded will be (1988). nied, 546 A.2d 622 consid ing party who did contribute Among The Uniform Contribution Tortfea Buttermore eration toward the release. Act, (“UCATA”), §§ sors Pa.C.S. Hospital, 522 Pa. Aliquippa seq., et corrected these UCA- inequities. (1989). However, wants plaintiff if a TA one enables to settle with pre to settle with one tortfeasor but have tortfeasor and still recourse others, he or she can right serve the to sue remaining also tortfeasors. UCATA pro a a rata release. If sign pro tanto or among joint tort provides for contribution to a tanto plaintiff pursuant the settles feasors, subject to the limitations set forth her release, his or plaintiff the reduces in the Act. non-settling joint tort recovery a against effect 13 Section 8326 states that the paid of by feasor the amount consideration partial damages a the of settlement on Miller, 398 v. for the release. Wirth against the defen- non-settling recoverable (1990), 244, ap Pa.Super. 580 A.2d 1154 dant is as follows: 637, Pa. 592 A.2d 1304 granted, 527 peal one injured person (1991),

A the of by improvidently release as appeal dismissed (1993). tort-feasor, 278, or after joint whether before Pa. 632 A.2d 309 granted, 534 contrast, other judgment, discharge By pursuant does not the if settles plaintiff release, pro- reduces tort-feasors unless the release so to a vides, recovery against non-set but reduces the claim his or her by joint that tortfeasor’s tling tortfeasor in the amount of other tort-feasors liability. total in share of the for the release or allocated paid consideration 1148 Pennsylvania Categorizing 474, v. under Eagle,

Charles Giant 513 Pa. 522 (1987). Therefore, A.2d in except limited TDP infra, circumstances discussed the parties Pennsylva- A review the of law in ato option have the to determine concerning nia set-off and contribution proportion by the amount or which the Pennsylvania demonstrates that does not

total verdict shall be reduced among majority fall non-settling jurisdictions tortfeasors of to reflect the set- tling tortfeasor’s share.18 which the judgment automatically re- by duced the amount of consideration ¶ 15 The or proportion amount amount set forth the re- of the set-off under a pro rata release also lease; nor Pennsylvania does follow depends upon the underlying cause of ac rule, apportioned by which the In Pennsylvania, tion. liability among plaintiffs judgment by tortfeasors is reduced the re- allocated differently negligence action than it is in a strict leased tortfeasor’s share as determined liability action, action. In a negligence fact, regardless the trier of terms liability among is allocated responsible Further, Pennsylvania the release.20 according tortfeasors percentages does not meet ‍‌‌​​‌​‌‌‌​‌‌‌​​‌‌‌‌​​​‌​‌‌‌‌​​​​​​​‌‌​​‌​​‌​​​‌​‍“pro the definition of a comparative Pennsylvania fault. Compar rata” state under TDP21. because lia- Act, ative Negligence 42 Pa.C.S. 7102 bility differently is allocated depending on (1982). Thus, “pro rata” set-off is calcu underlying Pennsyl- cause action. lated based on settling party’s percent provides vania and several liabili- age negligence determined ty, in addition to liability,22 “several” factfinder. Eagle, supra. Charles Giant and, thus, among tortfeasors does not However, casеs, as in the meet the definition of a liability” “several judice, case sub equal is allocated Instead, state. since the amount of set- ly tortfeasors, among responsible without off depends both on the terms set- regard to fault. Walton v. Avco Corp., 530 tling underly- tortfeasor’s release and the (1992). Thus, 610 A.2d 454 a “pro action, ing Pennsylvania cause fits most rata” set-off is calculated based upon the H.3(f), appropriately category total “States divided the number of defendants.19 with multiple set-off rules.”23 Under this (citation omitted). litigation 18. The economics have adopted been dis- We have herein many scholarly journals; Pennsyl- cussed in preferred phraseology. vania, credit, to its has not locked into one form set-off rules over another because the generally Eggen, 20. See Jean Macchiaroli Un- recognized courts of this state have derstanding State Contribution Laws and go regard- multitude of factors ing into a decision Their on the Settlement Mass Tort Effects See settlement. Settlements Under Joint Actions, 1709-15 L.Rev. Texas Revesz, Liability, and Several Kornhauser & (1995). (1993) (concluding 68 N.Y.U. L.Rev. apportioned neither the tanto nor 17, supra. n. See performs consistently share set-off rule better than the other and that the relative settle- Glomb, 22. See Glomb v. ment-inducing depends value of set-off rules (1987) (en banc), appeal upon strategic thе nature of the interaction denied, (1988), 623, 538 517 Pa. including parties, between the costs concerning a discussion the circumstances success). litigation probabilities and the of separate "apportionment which lia- under of bilities,” liability, may imposed. be several suggested It phrase 19. has been the that "al- liability” preferable "appor- location of is to that, purposes 23. if we to find damages” referring Even were for tionment of when to liability liability among jointly of a such the percentages action as case sub of liable defendants, judice, Pennsylvania concept "apportion- of meets the since the definition of a TDP, among joint "pro the ment tortfeasors" is an rata” state under we would still incon- conclude, court, sistency in and terms. Torts: Law Advoca- as did the trial that our anal- Litvin, (1996) (c) cy, McHugh depends § § ysis upon appli- & 18.1 at 207 the under H.3

H49 contribu- set-off and govern purposes sors for of provision, “applicable law shall cause of apply which set-off rules to each tion. thereof each of part

action or and element Walton, helicopter Hughes, H.3(f). TDP, § damages.” We therefore Avco, manufacturer, engine an manu- and to to applicable Pennsylvania turn law de- the facturer, liable for jointly were found termine the amount of set-off appropriate liability theo- plaintiffs’ оn strict liability in strict cases. deaths Pennsylvania Su- the appeal, ries.24 On Pennsylvania Applicable Law in Hughes that preme recognized Court first that, Appellant argues under duty the an to warn independent had law, Pennsylvania the terms of release de defect; in- plaintiffs having the design of the appropriate termine amount of set-off liability the curred for primary concurrent liability within the context a strict ac plaintiffs’ injuries, Hughes precluded Consequently, tion. set-off in this case should the from Avco. seeking be amount of consideration from indemnification by the Trust the pursuant 578-80, to Bakers to Walton, 459- at at supra, pro Appellee, tanto release. on the addressed whether 60. Court next hand, other us urges adopt position to the Avco, plaintiffs the which had settled with taken the by disregard trial court and to verdicts, total for amounts in excess the the terms of the Relying upon release. to contribution from was entitled seek Corp., Walton v. Avco 530 Pa. Reasoning that Avco’s settle- Hughes. (1992), A.2d 454 and Ball v. Johns-Man plaintiffs not relieve ment with did ville Corp., 425 its duty to Hughes its (1993), that, the trial court concluded damage proportionate full share of in Pennsylvania, damages are apportioned awards, that Avco had not extin- among strictly defendants who are held guished liability by Hughes’ virtue liable, such that each defendant liable settlement, rejected rе- Avco’s the Court more, its “pro rata” share and no re quest for contribution.25 Id. gardless joint of the terms of a tortfeasor allocating liability Finally, A.2d at 461. release. We do not read Walton Ball tortfeasors, strictly lia- joint between both broadly; so neither case suggests ble, alloca- the Court concluded that such joint liability and several should abol tion should not be made on basis Instead, ished in strict cases. fault”, but rather divided “comparative concept Walton Ball addressed the among allocation and remand- equally parties,26 tortfea- between engine part, cable liable fail- law contribution and the defective Penn- used Walton, However, sylvania. design. TDP of the defective because the does ure warn not supra, allow for 610 A.2d at 457. contribution claims except Trust a co-defendant under circum- Thus, here, Hughes' “proportionate the issue of applicable stances not the trial court's context of as- arose finding share” giving effect to tanto release obligations as sessing rights and between require Appellant this case would tortfeasors, where the in situation indemnify Trust contribution tortfeasor, Avco, settling more had settled by Appellee,thereby creating inequi- an claim result, amounts of the verdicts. than total supported table not the record. Moreover, accept Appellee’s we do claim finding, well- In so the Court reiterated the that a tanto release is "deemed” a concept liability is im- that strict established under such as claim fails at- regard to "In our posed without fault: (c)(i) (ii), clearly account for H.3 burdens tempts place inevitable financial permit set-off either the amount of Trust them, we positioned bear those best payment or of lia- the Trust's allocated share injured continually plain- protected the have bility, provided applicable law. responsible for manufacturers tiffs and held Avco, they put engine products into stream jury have 24.The found manufac- 583-84, Walton, turer, supra, 610 at engine design, liable for defective commerce." Hughes, helicopter A.2d at 462. manufacturer which 1150

ed to the proceed- trial for further poses,30 position espoused by was not 584, ings. Id. at 610 A.2d at Walton, 462. it majority nor has been adopted by Pennsylvania Supreme ¶ 19 The case Ball an action involv- was any subsequent Court in decisions. In- ing several suppliers, defendant asbestos deed, such position a would eradicate the some of were bankrupt, whom and others principles joint well-established and sev- whom had been summary dismissed on judgment or plaintiff. liability among settled with the On eral and contribution tort- appeal, asked, panel UCATA, of this was Court feasors under the which contin- alia, inter to determine the sufficiency of ues be the law of this Commonwealth. necessary permit evidence allocation of Instead, and Ball our support Walton liability in the context of the non-settling holding in that liability this case must bé defendants’ cross-claims these oth- equally among joint allocated strictly liable er Emphasizing individuals. that the case solely purposes tortfeasors for applying involved theories both negligence and pro- UCATA’s set-off and contribution liability, recognized the Court that visions. liability allocation on the basis of causal ¶ Alternatively, 21 Appellee that argues Walton, fault prohibited by supra, was not requires Walton rata of the as to those settled defendants with suffi- share, Ball, settling tortfeasor’s regardless cient liability.27 supra, evidence release, However, 625 A.2d at the terms of the 658. the Court all strict liabili- However, liability found that on ty allocated based fault cases. in both Walton precluded was relied, this instance lack of the case on it which Charles case, sufficient In evidence. such a Eagle, supra, question Giant was the Court held that should allocat- obligation non-settling tortfeasor rata, ed on or equal percentage the settling tortfeasor where had basis, only among tortfeasors liability. excess its share of allocated found plaintiffs injuries. liable for the Id. cases, relying upon policies both in favor of 625 A.2d at 658-59. settlements, promoting avoiding tortfeasor, windfall to non-settling Thus, 20 neither Walton nor required Court the non-settling tortfeasor Ball legal stand for the proposition offered — its full share of allocated by the trial court must be spite fact that the total payments apportioned separately among tortfeasors exceeded the amount Moreover, found strictly hable.28 while the that, jury verdict. The Court reasoned Ball Court gives passing reference to Jus “ concluding is no basis ‘[t]here tice Papadakos’ concurring opinion in Walt on,29 jury verdict serve cap which must as a suggests that tortfeasors strictly recovery may found liable a plaintiff should be limited to total re- ”31 paying their all pur- share for ceive.’ 27. The held personal injury person- Court also that the trial court cases because "[m]ost properly injuries very incapable refused allocation as to those entities al nature are sued, Donovan, bankrupt, been had not were Capone v. of division.” 332 Pa.Su- 185, 1249, (1984); for which was there insufficient evidence of per. see Ball, liability. supra, at 659-61. Owens-Coming Fiberglas, also Martin v. 377, (1987). A.2d 947 Notably, 28. in neither Walton Ball Ball, supra, there discussion of "distinct harms” 29. 625 A.2d at 658. suffered or whether was a there rea- Walton, 584-85, "determining sonable basis for the contribu- 530 Pa. at 463 A.2d harm, J., tion single (Papadakos, concurring). of each сause” to the required apportionment separate liabili- Glomb, Walton, supra. among ties supra, tortfeasors. In- at 461 deed, (quoting Eagle, our have been to im- Giant courts reluctant Charles v. 513 Pa. (1987)). pose separate liability among defendants in A.2d therefore, ¶22 claim; the of the terms Eagle total Neither nor Walton Giant Court, pro for a tanto set-off providing release addressed the issue before this interpretation This is the determination of set-off in a enforced. which should be the Walton liability settling policies emphasized case where de- the serves encouraging paid fendant less than its allocated share in favor of Eagle and Giant finality. to liability pursuant pro of a tanto release. respecting settlements and of Indeed, neither has party poli- adduced furthers the This also interpretation authority directly point. analyzing Eagle In and Giant cies reinforced in Walton issue, however, guided by this we are the fully compen- that the should principles holdings and of and Gi- Walton and that a non- injuries, sated for his Eagle. ant should not benefit settling joint tortfeasor settling of tortfeasor from the windfall a First, Eagle the Court in Giant his or her share of allo- paying more than stated that its decision was specifically extension, liability. By a non-set- cated UCATA, provisions consistent with the of a tling joint tortfeasor should not receive “properly interpreted.” Eagle, Giant the of a of its windfall in form release supra, at 522 A.2d at 4. The Court plaintiff simply to the and several stated of proper interpretation that the for joint tortfeasor settled because another a Section 8326 was that the parties of his her allocated share less than option release are afforded “an to deter- liability. To hold otherwise would be by mine the amount or proportion joint and the of sever- principles eradicate provided the total claim shall be reduced effectively repeal the liability, al greater that total claim is than the Moreover, such of UCATA. provisions added). paid.” (emphasis consideration Id. be- discourage a result would settlement case, In that the total claim exceeded option not have the cause would paid; consideration the Court therefore negotiating a tanto release.33 pro of gave effect to the of terms the release a providing for reduction the verdict ¶25 is also consistent with This result settling of pro defendant’s rata share Miller, In supra. the result Wirth v. liability. Id. at allocated Wirth, Court addressed panel a Walton, 5. In while the Court did pursu- release enforceability pro of a tanto specifically par- address the terms of the paid settling ant to which the tortfeаsor release,32 ties’ the amount of consideration the allocated less than his share of paid pursuant to the release was excess In negligence in the context of a action. verdict; jury accordingly, total un- case, rejected argument we der the logic Eagle, Giant the terms the stat- Eagle judicially supplanted Giant preclude the release did not recovery utory provide of UCATA requirements plaintiff against remaining tortfea- set- in the verdict reduction sor. allocated share tling tortfeasor’s if the case. This Court held that every Applying the “proper interpreta- release were pro tanto judi- language tion” Section 8326 to the case sub ce, be to convert ignored', “the effect would paid by amount of consideration liability, settling jury’s apportionment was not in tortfeasor excess pro parties tanto concurring dissenting opinion, 33. Whether the choose his depends on the economics rata release Zappala Justice would have enforced the ex- situation; likely plaintiff is more for, press provided terms the release which because, in a settle with tanto release alia, by the inter a reduction in the verdict settling paying case defendant where greater of the amount of consideration share, percentage such a less thаn its release, settling or the defendant’s dif- plaintiff will recover the assures that the Walton, liability. supra, rata share paid in the settle- the amount ference between J., concurring (Zappala, 610 A.2d at 463 Law and Advo- the verdict. Torts: ment and dissenting). cacy, supra, at 195. contribution, purposes one to appor- liability plaintiffs to several for the full liability tionment of purposes verdict, all there- amount of the it to obligating bear by eliminating joint and liability several as plaintiffs’ shortfall created set- prescribed by Wirth, law.” supra, at 1158. tlement with the Trust.

Appellee presented has argu- no better ¶ sum, a 28 In we conclude that ment in favor of eliminating joint and sev- given to settling tanto release a tort liability eral in the liability strict context. liability a feasor in strict action must be Indeed, policy shifting the financial terms, according enforced to so long its as burden to the is equally defendants as the consideration for the release does great, if greater, not in such cases.34 not plaintiffs exceed the value of the total that, noteWe under the circum claim. Our decision is consistent with case, stances this will AC&S not be able Pennsylvania’s longstanding legislative in recovery to seek from the pay Trust for (1) judicial tent and affirmation that as ments made excess of AC&S’ share of between the rights compet of victims and liability allocated pursuant tо the terms of tortfeasors, ing the rights of victims shall However, the TDP. AC&S was in the class (2) be paramount, and defen of co-defendants which negotiated for and dants are free to choose the method of received valuable exchange concessions in settling cases consistent with respec agreeing not to seek contribution from tive strategies. interests and The Com Trust; these concessions be included monwealth’s policy always has been that ing able treat Trust as a settlements shall be encouraged par tortfeasor without the introduction fur ties need all incentives available to end proof, ther and receiving a set-off for the Walton, litigation on an amicable basis. Moreover, Trust’s of liability. in the Eagle, supra; Giant supra. Accordingly, event that the Trust increases the percent we conclude that the a trial court erred as age liquidated payment value over matter of failing give law in effect to the time, AC&S will be entitled to receive Manville Trust tanto release. We re payments additional to the extent that it verse the trial court’s Appellant’s denial of paid the Trust’s share of the verdict.35 request to mold the pursuant verdict Thus, will we bargain hold AC&S release, this and we remand this case to they if, negotiated hindsight, even that the trial court proceedings for further con bargain Walton, was suрra. unfavorable. sistent with Opinion. this ¶ 27 We further note that AC&S could have avoided the possibility of a contribu- II. Appeal The AC&S tion this obligation case settling ‍‌‌​​‌​‌‌‌​‌‌‌​​‌‌‌‌​​​‌​‌‌‌‌​​​​​​​‌‌​​‌​​‌​​​‌​‍ ¶ 29 We next address AC&S’ advance with the plaintiffs, as did three of claim that there was insufficient evidence defendants, settling with a pro rata liability support the verdict. The However, release. AC&S chose to “roll concerning sufficiency standard of evi the dice” and take its chances that personal injury dence in asbestos-related factfinder impose liability, would not or actions is well-established: that such would be less than the In order a for defendant to be liable in amount for which it might have settled. action,

Having a eyes”, products rolled “snake whether un- AC&S cannot be heard to complain theory about its negligence der lia- See, Co., (a)(iii), e.g., Land possible, Tool Pa.Su- 35. Pursuant to H.3 it is Svetz (1986), per. appeal 513 A.2d admittedly though likely given the finan- denied, (1987), Trust, cial state of the that AC&S will receive stated, Court this "Strict payment from the to a Trust maximum of that, upon policy based determination $270,000 ($300,000 $30,000 already minus between an innocent consumer and a manu- paid). product, facturer of a defective the manufac- turer should bear the loss." questions that 31 It is well-established plaintiff must establish bility, [the] are by product were in evidence injuries credibility caused and conflicts supplier. particular manufacturer and a review resolve for the trial court to requires action In an asbestos the evidence. reweigh should not ing court pres- plaintiff more than mere establish 319, Miller, 316, v. Adamski workplace. in ence of asbestos Moreover, (1996). 171, 173 the factu A.2d he in prove Plaintiff must that worked will the trial court findings al of products’ of use and vicinity they supported are not unless disturbed that, hence, he inhaled asbestos fibers record. competent evidence manu- product specific shed Goshen, West Drug Store Thatcher’s facturer. Inc., Supermarkets, Inc. v. Consolidated Fibreboard, Ottavio (1994). A.2d 156 Absent 535 Pa. (1992) (en 1297-98 discretion, court’s the trial an abuse banc) (citations omitted). Moreover, Id. will not be disturbed. determination sufficiency reviewing the of evidence verdict, support the we view the evidence of the rec- thorough 32 After a review verdict light most favorable ord, testimony of deposition including winner, granting party that benefit Baker, testimony of Mr. and the trial Mr. all reasonable inferences. Id. Laspina, we conclude McGrath and Mr.

¶ 30 The court trial summarized fact are findings court’s that the trial the evidence at trial as follows: evidence, with the by competent supported deposition

Both Mr. Baker at his finding that Mr. McGrath exception worker, McGrath, a fellow testified John Armstrong as the manufacturer identified daily per- that Mr. Baker worked with fact, In pipecovering. of the asbestos ther- installing Armstrong sons asbestos corroborated Mr. Bak- while Mr. McGrath mal in the pipe insulation course a steam- that he worked as testimony er’s building’s AC&S extensive renovation. to workmen in- proximity fitter in close vigorously pipe thermal contested regular on a pipecovering stalling asbestos covering the heat- was used insulate years and that approximately two basis building. ing system installed that Mr. created dust pipecovering this position, presented of its AC&S support 9/16/96, 20-21, inhaled, N.T., at he Baker Joseph Laspina, the head of the Kardon on recall trade names was unable to time, Building’s at the maintenance staff at 37. pipecovering. Id. the boxes no who testified there was insulation Nevertheless, Mr. Baker remembered question. pipes whatsoever site, Armstrong pipecovering reject testimony, this The chose to boxes of as such because the he identified reasoning that have made little it would “a marking, had a distinctive pipecovering building’s pipes sense to leave the steam A in it ... ”. Baker big circle with an the extensive renova- during uninsulated 4/6/95, Baker at 64-65. Mrs. Deposition, Instead, the court building. tion of the testimony expert also medical presented testimony of Mr. Baker accepted pathologist and by a board-certified co-worker, McGrath, and his Mr. who that Mr. pulmonologist board-certified were pipes testified both that the steam during asbestos fibers exposure Baker’s insulated, and that this insulation substan- a steamfitter employment his asbestos-containing Armstrong pipecov- contracting meso- his tially contributed to there was suffi- ering. Consequently, thelioma, lining which is a cancer presented support cient evidence ex- lung Baker was com- finding court’s that Mr. ribcage and outside to AC&S’ posed product. exposure. asbestos monly associated with 9/17/96, 24; at 10- (citation (p.m.), N.T. 1/16/97, at 8 Opinion, Trial Court 9/16/96 11,16-17. omitted).

¶ On SB the basis of this tak- fied testimony, simply because of the nature of the en light underlying in the most claim. favorable to the winner, as verdict the evidence LALLY-GREEN, J., concurring: established that Mr. Baker in the worked vicinity Armstrong Majority an states the asbestos issue as: product unique and that he “whether under the inhaled the circumstances asbestos fibers of this case the shed or the non-set- product. We therefore con- tling tortfeasor clude that should bear burden of the evidence was sufficient to the shortfall between the consideration support the finding trial court’s Arm- paid by ($30,000) the Manville Trust strong’s asbestos products were a sub- its damages allocated share of the awarded stantial factor in causing Mr. in- Baker’s ($440,000), to a difference of Ottavio, juries, supra, and that AC&S $410,000.” (Majority Opinion page at was liable as a tortfeasor for these 1144.) I believe the issue is: what injuries.36 Accordingly, we tri- affirm the parties’ effect release the context al denying court’s order AC&S’ motion of the Manville Trust Disposition Process judgment notwithstanding the verdict. (“TDP”)? CONCLUSION: ¶ 2 All of parties agreed here to the ¶ reasons, 34 For the foregoing re-we Thus, gov- terms TDP. the TDP part verse in and affirm in part the Order erns the resolution of this issue. The Ma- of the Court of Common Pleas Philadel- jority the provisions details of the TDP 16, 1997, phia County dated January and that Pennsylvania concludes is a remand this case to that court for further H.3(f) state, ie., paragraph a state with proceedings consistent with this Opinion. H.3(f) “multiple set-off rules.” Paragraph provides as follows: ¶ SOLE, J., DEL joins 35 and files states, In some different set-off rules Concurring Statement tanto, (pro pro rata or apportionment), ¶ LALLY-GREEN, govern different J., causes action or files a parts thereof or different elements of Concurring Statement states, damages. In such applicable law ¶ EAKIN, J., a Dissenting files govern shall apply set-off rules Opinion, joined by McEWEN, President each cause of or part action thereof JOYCE, Judge, and J. damages. each element of SOLE, J., DEL concurring: agree Majority’s I with the conclusion. ¶ join 1 I the majority’s analysis and ¶3 H.3(f) Paragraph pro- of the TDP disposition. agree I Pennsylvania recog- applicable vides that govern state law shall nizes multiple set-off rules. Unlike the which set-off apply rules to each cause of dissent, I parties believe the to a release damages. action and each element of are free to contract how set-offs will be Here, liability. the cause of action is strict treated. I agree cannot with the dissent appears statutory authority There to be no express agreement parties governing in a set-offs strict con- Relevant, to the contract be judicially controlling, should modi- text.37 but not case AC&S, formerly Armstrong 36. Contracting pipecovering Armstrong asbestos boxes Co., supplied by was sold or AC&S. Supply took over the in- insulation Co., Armstrong stallation business of Cork Majority argues Uniform Con- The right "Armstrong” and obtained the to use Act, Among 42 Pa. tribution Joint Tortfeasors products by trade name on thermal insulation ("UCATA") seq. provides guid- § 8321 C.S. et licensing agreement executed 1957. As applicable here. While ance UCATA is exposure Mr. Baker’s asbestos this case cases, apply negligence it does not in strict place took between 1969 and when he Ball, liability cases. See 625 A.2d at J., Eakin, Building, worked at the Kardon Opinion by evidence Dissenting at quoted in supported finding trial court’s that the Court is the before The issue Corp., is found v. Avco law Walton one (1992). There, settlement effect of 610 A.2d 454 Trust, remaining tortfeasor, on the Court held that each strict liabili- Supreme AC&S; tortfeasor, in dollars non-settling co-defendant has ty equal responsibility terms, issue is whether and cents judgment settling for the and a strict lia- $410,000 shortfall AC&S should bear bility can seek contribu- co-defendant by the consideration between the from overpayment judgment tion of a damages. share 581, Trust and its allocated Id., other co-defendants. 530 Pa. at also, Ball 461. See v. Johns- majority gives the 3 The Corp., Manville terms), hold- (according its tanto effect (1993). 650, 658 nor Neither Walton $410,000 ing up must make AC&S Ball the issue whether a addressed majority determines Penn- shortfall. can be held co-defendant multiple sylvania is state with strictly responsible for another liable co- Distribu- of the Trust purposes rules for inability to an defendant’s (TDP), broadly looking tion Process plaintiff.38 Conse- undercompensated and contribution and deter- law of set-off quently, since this is not the issue before rata re- pro both tanto and mining pro resolve,39 are left no state us we with de- Pennsylvania, in leases are authorized statutory authority controlling law case underlying pending on the nature this set-offs in case. li- directly at strict action.40 I look would actions, proceeded this ease ability since ¶ Thus, 4 we turn to the terms of the eases, liability basis. In such a strict release to determine here. happens what is be- approach preferable pro rata tanto, pro plaintiff is has Since the release below, cause, it fully as reflects discussed right a contractual to seek relief from the sta- reality of the Trust’s limited fund Thus, liability I other strict defendants. TDP, tus, to the terms of the gives effect concur in the result. most guidance of cases and follows J., EAKIN, dissenting: to this issue. relevant ¶4 majority 1 The holds trial court litigation spawned asbestos Massive give issue, its failing essentially pits unique erred as a matter of law in this which Penn- Injury effect to the Manville Set- fundamentals of against Personal complexity I contribution. pro sylvania tlement Trust’s tanto release. re- on set-off and law dissent, bankruptcy spectfully and would affirm the Trust evolved from the The Corpora- proceedings of Johns-Manville molding trial court’s order the verdict. (the H.3(f) argues logically of that document 38. The that since Section dissent "appli- provision) us to multiple directs strict can not seek con- set-off co-defendants govern which set-off overpayment for law shall [which] tribution from other co-de- cable fendants, then, law, action." This apply cause of under state absent rules to each agreement contrary, brings Walton v. Avco language to the a strict co- us back to (1992) and responsible defendant can not be held for A.2d 454 Corp., 530 Pa. 610 strictly inability Corp., 425 another liable co-defendant’s Ball v. Johns-Manville discussion, (1993){see suggested that in- its share. It is 650 controlling ), public policy Waltоn and Ball in a strict hold tortfeasors fra might public policy only be different from the rata are liable case effect in a like this one where a Pennsylvania case rata If state share. (the H.3(c) underpaid. has been liability purposes, TDP pro-rata states provision) provides pro-rata nonsettling directly against us defendants "judgments issue before as a This law, reduced, controversy by applicable provided case as a similar issue was are and Walton Ball. share attributable either the paid ...” parties or the amount released added), bringing us to Section ap- (emphasis in either 40. There are difficulties inherent of the Uniform Contri- Pennsylvania see proach. accept is a state If we infra Among Act. Tortfeasors purposes bution multiple rules for 1156

tion, a manufacturer and agreement. distributor of as to that appended document bestos products. designed See In re Classwide settlement was re- Joint Eastern system move the Trust ‍‌‌​​‌​‌‌‌​‌‌‌​​‌‌‌‌​​​‌​‌‌‌‌​​​​​​​‌‌​​‌​​‌​​​‌​‍from the tort and and Southern Districts Litiga Asbestos equitably distribute limited Trust assets (Findley Falise), tion F.Supp. among Findley, its beneficiaries. (E. S.D.N.Y.1995), & part, rev’d aff'd F.Supp. at 491-95. The class was certified (2d Cir.1996), part, 78 F.3d 764 on re class, pursu- as a limited fund settlement mand, (E. S.D.N.Y.), F.Supp. & 23(b)(1)(B),42by ant to F.R.C.P. the United (2d Cir.1996). aff'd, 100 F.3d 944 The States The District Court.43 Bakers are Trust succeeded to Manville’s extensive mandatory, members of opt-out non asbestos liаbilities and recognized injured class. plaintiffs and manufacturer co-defendants as beneficiaries.41 Trust Findley assets were in The seeks to pre- settlement (and tended to compensate a serve limited fund the entire class sub class classes) prevent and exhaustion of the fund persons with personal injury through early Findley, claims it. contribution claims the Trust. F.Supp. Findley at 564. The Court Findley following certified the found the Trust’s outweigh “liabilities far class: and, its assets absent the instant class past, present All and future Beneficia- action, the piecemeal liquidation current ries of the Manville Injury Personal Set- payment some claims full value tlement Trust each of whom has or will by deplete the Trust would the Trust’s have a claim wrongful either for death deprive assets would most present and or personal injury by exposure caused to future Beneficiaries of their to be right asbestos, or a claim for warranty, guar- for compensated by their claims the antee, indemnification or contribution Id. Trust.” arising from an obligation the of Trust ¶ When Mr. Baker the accepted for payment the of death or personal settlement, signed Trust’s offer of he a injury claims. Disposition “Manville Trust Process Joint Tortfeasor Release the Amended for State Findley, F.Supp. at 575. The court Pennsylvania,” of provided perti- designated six including subclasses three part: nent plaintiff subclasses and three defendant subclasses. Findley, F.3d at 770. This against In the event of a verdict oth- was a mandatory, opt-out non settlement ers, any judgment the entered on ver- class, by bound the terms of Stipulation a dict takes into account the status of of agreed by Settlement to parties the a joint the Trust as legally tortfeasor subject TDP, to procedures the of the a responsible my injuries for shall be re- (1) Specifically, prosecution separate by Trust beneficiaries include: the of actions (a) suffering, persons against or who will in or the of individual members the suffer, future from asbestos-related diseases class ... would create a risk of part by exposure caused in whole or (B) adjudications respect with to individual asbestos-containing or Manville asbestos of the members class which would as a (b) products, joined formerly entities with practical dispositive matter of the be in- as Manville co-defendants in asbestos-relat- parties terests the of other members not (c) litigation, ed and manufacturers and dis- adjudications substantially to the or im- tributors of Manville or asbestos asbestos- pair impede protect ability or containing products who have claims their interests. against indemnity or Manville for contribu- tion. Findley, F.Supp. 43. See 473 and F.3d Findley, 78 F.3d at 769. comprehensive history for a of bank 23(b)(1)(B) provides 42. F.R.C.P. for the main- proceedings. ruptcy and class mandatory, opt-out tenance aof non class where:

H57 states, the amount of in which only Liqui- ment by duced the amount reference be reduced with judgment is to Trust as defined in Sec- payment dated or H(3)(a)(i) of a released TDP, apportioned to the share tion it is the of since (4) tortfeasor; the law states where absent parties intention that this Joint of (5) liability; and provides for several pro a provide Release Tortfeasor for TPD rules. multiple with set-off recover- states any damages tanto reduction of (e) (f). Moreover, (d), (b), (c), pro- as H.S against tortfeasors, able all other TDP, rata H(3) pro pro tanto respect as with vided in Section states, set-off rules alters state applicable. Re- TDP This Joint Tortfeasor eontri- by indemnifying against the Trust does not be provide, lease shall reduction, ob- arising judgments from to bution claims provide, construed for if a by health claimants44 pro tained extent rata share Trust, by trial court my damages credit is awarded recoverable law. against with the TDP and local (Emphasis all other accordance tortfeasors. H(3)(a)(i) TDP, Findley, F.3d at 770-71. provided).tion parties since it the intention H(3)(c) TDP governs 9 Section pro- that this Joint Release Tortfeasor rata states: pro the calculation of set-off pro vide tanto reduction of for (c) states, In Prо States. rata pro Rata damages recoverable all other equally among total divided H(3) tortfeasors, provided as Section fact finder to all defendants found applicable. This Joint (or legally responsible tortfeasors provide, Release does not Tortfeasor and re- legally to be agreed by parties provide, shall not be construed to tortfeasors, so applicable if law sponsible reduction, to the pro the extent parties. including released provides), Trust, damages my states, against nonset- judgments such recoverable all other tortfeasors. reduced, as tling provid- defendants are provided). (Emphasis law, by either the applicable ed ¶ Thus, $30,000, gave- Mr. Baker par- to released rata share attributable limiting the Trust its set-off agreed to be paid ties or the amount release). (a By Solely that amount tanto parties. released contrast, when the Bakers settled a set-off in a obtaining purposes of. Owens-Corning Fiberglas Corporation, state, to this subsection pursuant rata Pfizer, Inc., Manage- 3(c), and Asbestos Claims has whether the Trust regardless of Corporation, they release, ment releases wording executed or given a the been ($440,000 release, for a set-off providing pro pro rata rata such claimants any damages given for each allocated share the the deemed to have states shall be awarded). in- release and tortfeasor Trust against contribution the Trust demnified ¶ is the provides 8 The TDP that set-off by indemnity claims Co-Defendants satisfying method of co-defen- preferred judg- from a arising Trust against the § is to dant claims. TDP H.2. Set-off be such claimants. by ment obtained state according applicable calculated the (i) Where claims. Liquidated recognizes § TDP law. TDP H.3. The liquidated, has been underlying claim categories different for different rules (a) shall be either the amount set-off (1) states, pro states: tanto in which (b) or payment, Trust Liquidated defendant judgment against nonsettling judg- rata share pro the Trust’s by paid agreed amount or is reduced ment, law. by applicable provided as (2) by pro a released rata paid party; be (ii) Where claims. Unliquidated states, is divided liability in which the total liqui- been has not underlying claim all found to be equally among defendants be ei- dated, amount shall the set-off tortfeasors, responsible legally (a) pay- Trust Unliquidated ther party’s is reduced a released judgment (6) ment, pro rata (3) Trust’s or liability; apportion- pro rata share $300,000, paid to be and offered claim as Claim” Trust Mr. Baker’s The evaluated Health and Hardship “Exigent Extreme an 10%. share of the judgment, provided by verdict and not entitled to contribu- applicable law. tion from other defendant found liable, strictly the verdict is for whether H(3)(f) 10 Section governs TDP than greater amount lesser the calculation set-off in with states multiple settlement amount. set-off rules: (f) non-settling strictly States with In liable defen- multiple rules. set-off states, some different set-off rules obligated plaintiffs dants are to the for a tanto, (pro pro or apportionment) rata pro-rata share of the verdict and are not govern different causes of action or entitled to contribution from the set- parts thereof or different elements of tling, strictly liable defendants. Id. at damages. states, In such applicable 584-85, J., (Papadakos, 610 A.2d at 463 govern law shall which set-off rules concurring). apply to part each cause action or Memorandum, 9/11/96, Trial Court at 3 thereof and each damages. element of 658). Ball, (quoting The trial court ¶ 11 Relying on v. Corp., Walton Avco issue, found this be an uncomplicated (1992) 610 A.2d 454 and Ball H(3)(e) solely resolved of the TDP Johns-Manville Corp., and the court’s gold determination “[t]he (1993), court trial Pennsylvania prod- standard of set-off in Pennsylvania determined is a pro rata pro ucts actions is a share.” rata products state liability cases. If Memorandum, 9/11/96, Trial Court at 4. I conclusion, correct in this the trial court agree. must contrast, By must affirmed. upon re- products was liabili- Walton a strict view of the law contribution ty arising action from a helicоpter crash. Pennsylvania, majority concludes Walton, gave a release to Pennsylvania is a state multiple set- defendant, stating any one rules, recovery off because dif- allocated ferently depending nonsettling defendant must be the nature However, underlying cause of greater action. ac- reduced of the consider- cepting the majority’s proposition that tanto) ation (pro settling de- Pennsylvania is a state with set- multiple pro liability. fendant’s rata share of As it off rules does not defeat the more precise out, turned the defendant’s settlement proposition Pennsylvania pro-rata is a greater than payment state for purposes of this strict Nevertheless, share of the verdict. litigation. Supreme Court disregarded the tanto ¶ 12 The trial found this reasoning language of release and held the dispositive: recovery would only by be reduced Although go the Walton court did not on settling defendant’s rata share of the expressly to state that apportionment Walton, verdict. at strictly among liable must defendants ¶ 14 The Ball case was an asbestos ac- basis, i.e., pro on a rata divided propor- negli- tion several on defendants tionately in accordance with the number gence and strict theories. Certain tortfeasors, clearly this is a nec- filed bankruptcy, defendants others essary corollary of the Walton decision. summary on judgment were dismissed and Walton, Justice Papdakos, concurring in plaintiffs. still others settled with the The specifically interpreted majority the case resulted verdict jury against the manner, opinion in this stating: remaining appeal, two defendants. On join I the majority opinion because I Court panel this was asked to determine it says following: believe the trial properly whether the refused to

charge jury the on of liabili- apportionment defendants, ty among particularly where strictly III. As among between and lia- negligence both and strict are al- defendants, any ble defendant who has leged. although The Court not found plaintiffs prior settled with to verdict Walton, pro-rata negli- has settled its share of the on apportionment barred

H59 Findley, 878 forty-nine the states. of suffi- laws grounds was barred lack gence com- regarding evidence relative causal Weinstein’s F.Supp. Judge cient at 545. Ball, Significantly at 658-59. the noting: fault. are worth regard ments in this also reasoned: Court they as well as parties The have done Although go not on the Walton court did to administration. simplify could expressly apportionment to state that modify to to the parties agree were free among strictly must be liable defendants laws accommodate the effect of state basis, i.e., pro on a rata propor- divided action settle- of a class litigants part as tionately in accordance with the number ment, they and is what have done. this tortfeasors, clearly this is nec- product of full discus- The TDP is the corollary essary of the Walton decision. eminently it is among parties; sion the Ball, at 658. any no fair. There is evidence ¶ 15 on I must reasoning, Based this repre- not group’s fully interests were agree with the trial court: Ball and Wal- any as state’s law. sented only for holding ton mandate AC&S liable Set- Stipulation Id. The and the TDP pro its rata share. In both and Walton nego- tlement were the result of extensive relied, case on it the Charles parties Findley the to the among tiations Eagle, 518 Pa. 522 A.2d 1 Giant including parties litigation, herein. (1987), settling paid tortfeasors ex- The District Court’s class certification pro cess rata shares of allocated parties ably were findings plainly show Nevertheless, liability. respective represented those negotiations required non-settling courts tortfea- appointed of their class representatives sors to their full rata shares as Findley, F.Supp. and subclass. well, policies promoting based on settle- they opt Despite the fact could and avoiding non-settling ment windfalls to class, ample out had Bakers why ap- tortfeasors. I see no reason proceedings notice of the class settlement settling should not proach apply where the on their claim and its effect tortfeasor less than full rata of the settle- approval Trust. Before final (as herein). is the case class, ment District Court held fairness ¶ 16 I that pro see no basis for rule class mem- hearings gave purported tanto/pro rata depends allocation set- adequate object opportunity bers verdict, ultimate ratio settlement to as Findley, if See they tlement so desired. majority’s suggests. result Can the F.Supp. at 492-93. The record does law applicable principles change objected not reveal whether the Bakers specific mathematics of verdict? settlement, Findley deci- although apply Does the law one standard when involved in suggest sions their counsel was share, settlement exceeds the in the TDP. that resulted process another it not? I standard when does find event, out, majority points logic neither nor fairness such a dichoto- valuable benefits from the AC&S received approach. mous similarly, the negotiations settlement ¶ Moreover, believe the TDP I the Bakers of some settlement assured It is trumps the release. im- Baker/Trust if damages, even less than measure portant aspects to understand certain of desired. how Findley proceedings class Trust unjust It seem may 18 final of the parties resolved the terms tortfeаsor, AC&S, joint pays less its than is TDP. The TDP provides the limited fund but this is reflection of method Co-defen- “preferred satisfying The Dis- nature of the class settlement. H(2)(a). Judge dant claims.” TDP fund set- Court the limited approved trict the TDP’s set-off acknowledged Weinstein payment some tlement class “to ensure “byzantine,” merely are but that provisions claimants,” Findley, F.Supp. at complexity accommodating all reflects the and concluded “the Settlement plaintiffs was a fair tied with prior verdict has one founded a delicate balancing pro-rata settled for share the ver- interests.” at Findley, F.3d 779. Ab- dict and is not entitled to contribution refuge sent the of limited fund status any from other strictly defendant found Trust, the Bakers conceivably could liable, a great- whether the verdict is for recovery have received no their claims. or er lesser than amount the settlement (“... Findley, 878 at F.Supp. payment strictly amount. The non-settling liable of some claims at full value the Trust are obligated defendants to the deplete would the Trust’s assets and would a pro-rata the verdict and deprive present most and future beneficia- are entitled to from contribution right ries of be compensated for settling, strictly hable defendants. Trust”). their claims Ball, Walton, 625 A.2d at (quoting ¶ 19 disregard There no reason to J., (Papadakos, concurring)). negotiations hard-fought parties reasons, 22 For the foregoing I would Findley, resulting and the balancing court, affirm the learned trial and am con- interests, give effect to a side agree- strained to holding dissent from the ment between two of the parties, especially majority. doing require where so would a remaining party to almost twice the share other- ¶ 23 Judge President McEWEN required Pennsyl- wise under TDP and Judge join Dissenting JOYCE vania law. Opinion. ¶ 20 summarize, To I agree with the Ball, trial court: under Walton and Penn

sylvania clearly rata state for

purposes of set-off in strict cases

such as this one. I find no abuse discre

tion in trial interpretation court’s TDP; amount set-off for the

Trust’s share of to the Bakers is a share, $440,000. Opinion rata Sur Pennsylvania, COMMONWEALTH of Motions, 4-5.; Post-Trial Trial 1/16/97 Appellee, Memorandum, 9/11/96, Court at 3-4. Un der the terms of the and under Ball, Walton and claimants including the WILMINGTON, Appellant. Marcus A. Bakers, given must deemed to have Superior Pennsylvania. Court of Trust a tortfeasor release regardless of wording of the actual Argued Sept. release. Filed March ¶ 21 Among The Uniform Contribution (UCATA)45 Act Tortfeasors does not com Ball,

pel a different result since under

application required the UCATA is not

in strict actions:

As among strictly between and liable

defendants, any defendant who has set- provides pertinent part: 45. The UCATA tortfeasors the amount of the consider- ation for the injured release amount A person of one tortfeasor, proportion by pro- which the release whether before or after judgment, vides that the total claim shall discharge does not reduced other greater provides, paid. ‍‌‌​​‌​‌‌‌​‌‌‌​​‌‌‌‌​​​‌​‌‌‌‌​​​​​​​‌‌​​‌​​‌​​​‌​‍unless the so if than the consideration tortfeasors but reduces the claim 42 Pa.C.S. 8326. other

Case Details

Case Name: Baker v. AC&S, INC.

Court Name: Superior Court of Pennsylvania

Date Published: Mar 30, 1999

Citation: 729 A.2d 1140

Court Abbreviation: Pa. Super. Ct.