[J-10A-2019 and J-10B-2019] [MO: Mundy, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

WILLIAM C. ROVERANO AND 

JACQUELINE ROVERANO, H/W,

Appellants

v.

JOHN CRANE, INC. AND BRAND 

INSULATIONS, INC.,

Appellees

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No. 26 EAP 2018

Appeal from the Judgment of Superior 

Court entered on December 28, 2017 

at No. 2837 EDA 2016 affirming in 

part, reversing in part and remanding 

the Order entered on July 27, 2016 in 

the Court of Common Pleas, 

Philadelphia County, Civil Division at 

No. 1123 March Term, 2014.

ARGUED: March 6, 2019

WILLIAM ROVERANO,

Appellant

v.

JOHN CRANE, INC.,

Appellee

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No. 27 EAP 2018

Appeal from the Judgment of Superior 

Court entered on December 28, 2017 

at No. 2847 EDA 2016 affirming in 

part, reversing in part and remanding 

the Order entered on July 27, 2016 in 

the Court of Common Pleas, 

Philadelphia County, Civil Division at 

No. 1123 March Term, 2014.

ARGUED: March 6, 2019

CONCURRING OPINION

JUSTICE WECHT DECIDED: February 19, 2020

I.

I agree with the Majority that nothing in the Fair Share Act, 42 Pa.C.S. § 7102 

(“FSA”),1 signals the General Assembly’s intent to displace the fundamental principle that 

 

1 Act of April 28, 1978, P.L. 202, No. 53, § 10, as renumbered and amended, 

42 Pa.C.S. § 7102 (“Comparative negligence”).
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one cannot apportion financial responsibility disparately among defendants when they 

are found strictly liable rather than negligent, but rather must allocate liability per capita. 

See Baker v. ACandS, 755 A.2d 664, 669 (Pa. 2000). The only coherent way to assign 

unequal shares of liability among multiple defendants is to assess relative 

blameworthiness, and that leads inevitably to considerations indistinguishable from fault. 

But this Court steadfastly has eschewed fault-based analysis in strict liability. 

As this Court has explained: 

[T]he tortious conduct at issue [in strict liability] is not the same as that found 

in traditional claims of negligence and commonly associated with the more 

colloquial notion of “fault.” In this sense, introducing a colloquial notion of 

“fault” into the conversation relating to strict product liability in tort detracts 

from the precision required to keep this legal proposition within rational 

bounds.

Tincher v. Omega Flex, Inc., 104 A.3d 328, 400 (Pa. 2014). Liability simply cannot be 

allocated differently among several strictly liable defendants, at least in cases involving 

an indivisible injury like asbestos-related cancer, without resort to some arbitrary rubric 

inconsistent with the animating theory of strict liability.

I find it telling that, despite the most recent amendment to the FSA’s2 sweeping 

overhaul of liability exposure in multiple-defendant cases, and despite its nominal 

introduction of strict liability into 42 Pa.C.S. § 7102, Section 7102 retained the title, 

“comparative negligence.” With this continuing reference to negligence, the legislature 

implied that “fault” continues to gird the newly prescribed allocative inquiry.3 Importantly, 

the General Assembly amended this section against a framework in which joint and 

 

2 See Act of June 28, 2011, P.L. 78, No. 17, § 1.

3 We may consider titles of statutory provisions to aid in statutory construction, 

although titles do not control our interpretation. See 1 Pa.C.S. § 1924. 
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several liability had functioned not as the final word on multiple defendants’ respective 

degrees of responsibility, but rather as a mechanism to hasten a plaintiff’s full recovery, 

leaving jointly liable defendants to litigate separately their relative measures of 

responsibility in a contribution action. See generally Baker, supra. With the 2011 

amendment, the General Assembly effectively folded the allocative function formerly 

served by contribution actions into the trial at which the defendants’ liability and the 

plaintiff’s damages were litigated. In doing so, the legislature also denied plaintiffs the 

option of recovering from any one defendant more than that defendant’s share of liability. 

This much can be gleaned from the statute itself and is undisputed. What cannot be 

gleaned from the text of the statute is the legislature’s clear intent to abrogate the 

common-law principle that strict liability is not amenable to disparate apportionment when 

more than one defendant is found strictly liable for a plaintiff’s injury. As the Majority 

persuasively explains, we should not infer that the legislature intended to supplant 

established common law without clearer evidence than we find in Section 7102. See Maj. 

Op. at 20-24; see also In re Rodriguez, 900 A.2d 341, 344 (Pa. 2003) (“Under [the 

Statutory Construction] Act an implication alone cannot be interpreted as abrogating 

existing law. The legislature must affirmatively repeal existing law or specifically preempt 

accepted common law for prior law to be disregarded.”).

The Chief Justice, in his Concurring and Dissenting Opinion, finds support for the

contrary view in a subtle shift in language from the relevant provision of former 

Section 7102, which directed apportionment based upon the defendant’s relative “causal 

negligence,” 42 Pa.C.S. § 7102(b) (repealed), to that of present Section 7102, which 

directs allocation based upon the defendant’s relative “liability.” 42 Pa.C.S. 
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§ 7102(a.1)(1). The Chief Justice views this alteration as indicative of the General 

Assembly’s intent to subject strict liability claims to the apportionment approach. See

Conc. & Diss. Op. at 2 n.1. Yet, his analysis disregards the divergent connotations of 

negligence liability and strict liability. As set forth at length in Tincher, strict liability is 

effectively absolute. It is a species of the common law of torts informed more by principles 

of warranty and social justice than by notions of fault. Strict liability has long established

a duty, independent of fault in the common sense, informed by “[t]he hand of history, our 

ideas of morals and justice, the convenience of administration of the rule, and our social 

ideas as to where the loss should fall.” William L. Prosser, Palsgraf Revisited, 52 MICH.

L. REV. 1, 14-15 (1953).

In strict liability, the relevant inquiry is binary: if the defendant put the product that 

caused the plaintiff’s harm into the stream of commerce, and if that product was defective 

under one of the relevant rubrics,4then the defendant is liable. Not a lot liable. Not a 

little liable. Just liable. In this context, disparate apportionment for a single injury can 

only be arbitrary, if not utterly nonsensical. As the Majority explains, nothing in the 2011 

amendments to the FSA preempts the conclusion that the General Assembly understood 

that allocation in strict liability actions would continue to be per capita as our case law 

requires. The fine-grained distinction upon which the Chief Justice relies falls well short 

of the affirmative steps we typically require of the legislature before we determine that it 

intended to abrogate established common law.

 

4

In Tincher, we established at length that the plaintiff may seek to establish strict 

liability on the “consumer expectations” and/or “risk-utility” theory. See Tincher, 104 A.3d 

at 406-07.
[J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 5

I read the General Assembly’s use of the term strict liability in the FSA as 

embodying all of the various properties we have ascribed to that form of liability, including 

the rejection of the fault-based principles necessary to apportion liability in a non-arbitrary 

fashion.5 Its appearance in Section 7102 is not without effect, even absent subjecting 

strict liability to disparate apportionment. By adding strict liability to Section 7102, the 

General Assembly made clear that it intended to eliminate joint and several liability for 

strict liability cases as well as for other negligence actions. But in providing that strict 

liability would apply to defendants severally rather than jointly, the General Assembly 

neither said nor clearly implied that it intended to displace per capita apportionment in 

strict liability cases. 

I also agree with the Majority that there is no principled way to apportion relative 

liability in asbestos cases. In determining what constitutes substantial causation in 

asbestos cases, we have rejected the view that any one causative exposure can be 

identified where a party with asbestos-related disease was subject to multiple exposures. 

See Rost v. Ford Motor Co., 151 A.3d 1032, 1045-46 (Pa. 2016). In this case, as in 

 

5 Even if the legislature intended to transmogrify the connotation of “strict liability” to 

embody fault, I would remain deeply skeptical. The General Assembly certainly may

modify the common law by statute. It could perhaps abrogate strict liability entirely and 

replace it with something that incorporates some variation of fault, provided it does so in 

conformity with the general requirements of Article I, Section 11, of the Pennsylvania 

Constitution, which requires that a “remedy by due course of law” be available for any 

injury to one’s “lands, goods, person or reputation.” Cf. Yanakos v. UPMC, 218 A.3d 

1214, 1240-41 (Pa. 2019) (Wecht, J., dissenting) (“Article I, Section 11 should be 

understood to impose some outer limit on the General Assembly’s power to enact 

legislation that curtails or eliminates a common law cause of action.”). But merely calling

something strict liability does not make it so. “You can call a camel an elephant but that 

won’t make its hump disappear. Labels do not change substance.” Houston Gen. Ins. 

Co. v. Brock Const. Co., 246 S.E.2d 316, 319 (Ga. 1978) (Undercofler, P.J., concurring). 

Strict liability that relies upon fault is no longer strict in any intelligible sense. 
[J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 6

others, the medical experts agreed that “there is no scientific basis to determine which 

asbestos-containing product caused Mr. Roverano’s lung cancer.” See Maj. Op. at 26. 

The injury is indivisible; it cannot be separated into constituent parts. Necessarily, then, 

any attempt to deem one defendant more responsible than another—whether as a matter 

of “fault” or some other nominal allocative metric—would be arbitrary. Our law is clear 

that to invite or allow juries to make such arbitrary distinctions disserves the interests of 

justice. See id. (discussing Martin v. Owens-Corning Fiberglass Corp., 528 A.2d 947 

(Pa. 1987)). Where expert evidence cannot furnish a scientific basis upon which to 

allocate relative liability, any apportionment by the jury must stem only from conjecture. 

See id. A “[r]ough approximation,” the Martin Court explained, “is no substitute for justice.” 

Martin, 528 A.2d at 950.

The Chief Justice’s answer to the sheer impossibility of principled apportionment 

is unconvincing. In disputing the Majority’s reliance upon Martin’s rejection of rough 

approximations, he observes that “courts have come to accept abstract assessments of 

increased risk as proxies for traditional substantial-factor causation,” because asbestos 

cases “involv[e] frequently undocumented, unquantified, and sometimes small exposures 

to many different sources of asbestos occurring long ago.” Conc. & Diss. Op. at 4. In so 

many words, the Dissent suggests that, because “‘rough approximation’ is at best a 

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

one more “rough approximation” based upon relative risk won’t hurt. Id. 

We have adopted the “frequency, regularity, and proximity test” for substantial 

causation as a practical means to protect manufacturers from liability when the plaintiff’s 

exposure to their products was de minimis. The test also ensures that a plaintiff will be 
[J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 7

able to recover where he can establish that his exposure to a given manufacturer’s 

product was more than de minimis. See Rost, 151 A.3d at 1043. The Chief Justice’s 

proposed resort to a “risk-based” assessment suggests a reliance upon similar 

considerations for purposes of estimating comparative liability among multiple parties. 

However, the frequency, regularity, and proximity rubric is merely a practical framework 

for the fundamentally binary inquiry regarding substantial causation in multiple-exposure 

cases. It is not a suitable method for apportioning liability disparately among multiple 

defendants as to whom the plaintiff’s exposure satisfies the test, approximately or 

otherwise. Applying the frequency, regularity, and proximity test in the former sense does 

not require a “rough approximation” so much as it does the satisfaction of a threshold—

another fundamentally binary question. Only in applying it to an allocation of liability does 

it truly become the “rough approximation” that the Majority is right to reject. Thus, I join 

the Majority’s conclusion that the prevailing per capita method of allocation must continue.

II.

I also join the Majority’s determination that the Superior Court correctly concluded 

that settling bankruptcy trusts must be included on the verdict sheet so that the jury may 

determine their factual liability in furtherance of a fair (per capita) allocation of liability 

among responsible parties. 

As has been noted in the past, the rejection of fault-based principles in strict liability 

in favor of a warranty-inflected basis for liability, combined with traditional principles of 

joint liability, risked burdening certain defendants unfairly. But with the 2011 FSA

amendments, the General Assembly broadly eliminated traditional joint liability in favor of 

allocating liability among tortfeasors in proportion to their relative responsibility for the 
[J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 8

plaintiff’s injury, so that no defendant is even temporarily responsible to the plaintiff for 

more than that defendant’s particular share of liability. 

In furtherance of that goal, Subsection 7102(a.2) calls for the submission of settling 

defendants or other settling parties to the jury to enable it to resolve “the question of 

liability” in furtherance of “apportioning liability.” 42 Pa.C.S. § 7102(a.2). The point of 

apportionment generally is to ensure that no named defendant pays more than its “fair 

share” of the verdict—in the context of strict liability, calculated per capita among all 

individuals and entities whose products are deemed to have substantially caused the 

plaintiff’s harm. Notably, the liability even of those who settle with plaintiffs is not a 

foregone conclusion, and many releases executed in tandem with settlements disclaim 

any admission of liability. In the context of per capita apportionment, then, submitting 

settling parties to the jury serves only to enable the jury to determine how many parties 

caused the plaintiff’s harm, enhancing the accuracy of the head count comprising the 

denominator of the equation by which a liable defendant’s share of liability is calculated. 

With every settling party that the jury deems liable, the share of the verdict attributable to 

each non-settling, liable defendant is reduced.

The FSA specifically provides that—just for purposes of apportioning liability—“the 

question of liability of any defendant or other person who has entered into a release with 

the plaintiff with respect to the action and who is not a party shall be transmitted to the 

trier of fact upon appropriate requests and proofs by any party.” Id. JCI and Brand argue 

that the trial court erred in excluding certain bankruptcy trusts that had settled with the 

Roveranos, because such trusts qualify as “other person[s] who [have] entered into a 

release with the plaintiff with respect to the action” for purposes of apportionment of 
[J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 9

liability. Id. In pretrial proceedings, the trial court granted the Roveranos’ request to 

exclude such parties. At the time of the request, the Roveranos acknowledged only 

having filed claims with certain specific trusts, but did not indicate whether they had

reached terms or executed any settlement agreements with them. The trial went to verdict 

without the inclusion of any trusts. 

In their post-trial motions, JCI and Brand both asserted that the trial court erred in 

refusing to include settling bankruptcy trusts on the verdict sheet, but focused their 

argument on Johns-Manville/Manville Asbestos Trust (“Manville”), which settled with the 

Roveranos only after JCI filed a Joinder Complaint against Manville. See JCI Post-Trial 

Motion at 13-14 ¶ 17; Brand Post-Trial Motion ¶¶ 20-21. As for the other trusts, 

Defendants only asked the trial court to mold the verdict to reduce it by the amounts the 

Roveranos had recovered or would recover from bankruptcy trusts. See JCI Post-Trial 

Motion at 5-6 ¶ 6; Brand Post-Trial Motion ¶ 16. Neither suggested in their motions that 

any settling trusts (other than Manville) should have been submitted to the jury for 

purposes of determining their liability on an equal footing with the remaining defendants 

and Manville. 

In rejecting these arguments, the trial court did not specifically distinguish Manville 

from the other bankruptcy trusts at issue. It simply explained:

The court denied this motion at a pre-trial hearing on the grounds that these 

entities had already filed for bankruptcy prior to the institution of suit on 

behalf of the plaintiff. Under these circumstances, it would have been unfair 

to include the bankrupts on the verdict sheet. See Ottavio v. Fibreboard

Corp., 617 A.2d 1296 (Pa. Super. 1992) (en banc), and Ball v. JohnsManville Corp., 625 A.2d 650 (Pa. Super. 1993).

Closely related to this issue is the request by the defendants in their postverdict motions for a set-off for any financial compensation [the Roveranos] 

may receive from multiple bankruptcy trusts. At this time the [c]ourt was 

uncertain what, if any, payments [the Roveranos] has [sic] received from 
[J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 10

any of these trusts and the court is unsure what claims were made or will 

be made in the future. Consequently it would be impossible for the court to 

calculate any set-off, even assuming the plaintiff has made such application.

T.C.O. at 11 (citations and capitalization modified).

6

 

The Superior Court, for its part, analyzed the relevant questions more 

comprehensively. That court ruled that the jury should have been “permitted to consider 

evidence of any settlements by the Roveranos with bankrupt entities in connection with 

the apportionment of liability” under Subsection 7102(a.2). Roverano v. John Crane, Inc., 

177 A.3d 892, 909 (Pa. Super. 2017). The Superior Court noted that Subsection 

7102(a.2) makes no explicit exception for “settling persons who are bankrupt.” Id. at 910. 

The court then rejected the trial court’s reliance upon the Superior Court’s preamendment decisions in Ottavio and Ball, noting that Subsection 7102(a.2) expressly 

provides that evidence submitted in furtherance of allocating liability among settling nonparties is inadmissible in any other proceeding. Moreover, because the amended FSA 

obviates the need for jointly liable defendants to seek contribution, adding settling 

bankruptcy trusts to the verdict sheet creates no apparent risk of the contribution actions 

that informed the Superior Court’s rulings in Ottavio and Ball. Accordingly, the Superior 

 

6

In so describing the state of the record, the court either overlooked or disregarded 

an exhibit the Roveranos had appended to their response to JCI’s and Brand’s post-trial 

motions, which identified seven trusts, including Manville, with which they had reached 

terms and the amount of money they had received from each. See Plaintiffs’ Brief in 

Opposition to John Crane’s Motion for Post-Trial Relief, Exh. K. Arguably, the Roveranos 

should be held to these admissions here. See generally Dale Mfg. Co. v. Bressi, 421 

A.2d 653, 655 (Pa. 1980) (holding that admissions made in a given proceeding are 

binding within that proceeding). Consequently, when the Roveranos indicated by 

attachment to their post-trial motion that they had settled with seven bankruptcy trusts 

and provided the amounts received in connection with each, they appeared to confirm the 

existence of the settlements and the settlements’ values arguably were established. 

Whether this is the case, however, is for the trial court to determine in the proceedings to 

follow our remand.
[J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 11

Court correctly reversed the trial court’s ruling and remanded for a new trial on 

apportionment that took into account the settling bankruptcy trusts.

The Majority provides a useful review of the role bankruptcy trusts serve in 

resolving the long tail of belatedly manifesting asbestos-related disease, a mechanism 

that traces its origins to In re Johns-Manville Corp., 36 B.R. 743 (Bankr. S.D.N.Y. 1984), 

and later was codified in the Bankruptcy Code, itself. See Maj. Op. at 34-35. As the 

Majority explains:

The United States Congress enacted Bankruptcy Code Section 524(g), 

11 U.S.C. § 524(g), “which statutorily validates the trust and channeling 

injunction mechanisms pioneered in the Manville case.” [Elihu Inselbuch, 

et al., The Effrontery of the Asbestos Trust Transparency Legislation Efforts, 

MEALEY’S LITIGATION REPORT: ASBESTOS, vol. 28, #2, Feb. 20, 2013, at 4.] 

Under this statutory scheme, a bankruptcy court’s confirmation of a 

Chapter 11 asbestos debtor’s reorganization plan creates a trust for the 

payment of the debtor’s present and future liability and an injunction that 

channels post-confirmation claims to the trust. Id. This enables the 

Chapter 11 debtor to reorganize and remain commercially viable while the 

trust administers asbestos personal injury claims. Id. at 4-5. A “trust 

distribution procedures” (TDP) document, which the bankruptcy court has 

approved, controls the administration of the trust. Id. at 5. “The trust has 

fixed assets that will be insufficient to pay the full historic settlement value 

of all claims; it therefore sets a payment percentage, and each present and 

future claimant is paid the liquidated value of his or her claim discounted by 

the payment percentage.” Id.

Maj. Op. at 35 (footnote omitted). 

The Majority next explains that Subsection 7102(a.2) allows apportionment to 

either of two settling entities: defendants, or any non-party that “has entered into a release 

with the plaintiff with respect to the action.” See id. at 36 (quoting 42 Pa.C.S. § 7102(a.2)). 

This case involves examples of each, the Majority observes, because JCI filed a joining 

complaint that made Manville a party to these proceedings, and the Roveranos settled 

their claims with Manville before the case went to verdict. Id. The Roveranos separately 
[J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 12

settled their claims with at least six other non-party bankruptcy trusts that were not named 

defendants. See supra n.6.

Subsection 524(g)(1)(B) confers discretion upon the Bankruptcy Court to fashion 

a case-appropriate TDP and to enter related orders pertaining to the administration of a 

bankruptcy trust. It also precludes a “legal action for the purpose of directly or indirectly 

collecting, recovering, or receiving payment or recovery with respect to any claim or 

demand that, under a plan of reorganization, is to be paid in whole or in part by a trust . . ., 

except such legal actions as are expressly allowed by the injunction, the confirmation 

order, or the plan of reorganization.” 11 U.S.C. § 524(g)(1)(B). But no such claim is in 

the offing in this case or others like it.

The statute says nothing that disallows including a settling bankruptcy trust on a 

verdict sheet strictly for purposes of determining its liability in furtherance of 

apportionment affecting the exposure of other non-bankrupt defendants, where doing so 

would not constitute an action “for the purpose of directly or indirectly collecting, 

recovering, or receiving payment or recovery with respect to any claim or demand that . . . 

is to be paid . . . by a trust.” Id. To the contrary, the allocation scenario at issue arises 

only when the trust in question has already remitted payment and been released from 

further liability. 

The FSA provides that, strictly for purposes of apportioning liability, any person

who has entered into a release with the plaintiff “shall be transmitted to the trier of fact 

upon appropriate requests and proofs by any party.” 42 Pa.C.S. § 7102(a.2) (emphasis 

added). Not only is this language intentionally inclusive, the legislative intention it reveals 

is reinforced by the lone exclusion it allows for employers who have immunity under the 
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Workers’ Compensation Act. Id. This Court has held that the inclusion in a statute of an 

express exception implies the exclusion of others. See Castellani v. Scranton Times, 

L.P., 956 A.2d 937, 951 (Pa. 2008) (“The Shield Law provides for one exception, . . . and 

we are not at liberty to create others that the Legislature, in its wisdom, chose not to 

include in the text of the statute.”). Thus, if settling bankruptcy trusts are to be excluded 

from the verdict sheet as a matter of law, the source of the exclusion must lie elsewhere. 

But the only exclusionary sources the trial court and the Roveranos consider in this regard 

have no such effect. 

Ottavio and Ball hinged upon the risk of impermissibly exposing bankrupt parties 

to contribution actions consequent to an allocation of liability to a party undergoing 

bankruptcy proceedings. But the FSA obviates the need for such actions in asbestos 

cases, and further provides that jury determinations pertaining to allocation may not be 

used in any other proceeding. As the Majority also notes, Ottavio and Ball are inapposite 

because the parties in this case are not parties whose bankruptcies are pending in the 

Bankruptcy Court and subject to the automatic bankruptcy stay. Rather, the original 

entities have been discharged from bankruptcy and the trusts created in connection with 

that proceeding are governed by their own rules. See Maj. Op. at 37 n.25.7

 

7 This hints at a potential concern for another day. While language employed by the 

parties and the courts throughout these proceedings has suggested that the relevant 

question pertains to bankrupt entities and bankruptcy trusts alike, I have focused solely 

upon established bankruptcy trusts because it is such trusts only that are at issue. 

Whether the FSA requires (and whether it can require) the inclusion of parties subject to 

pending bankruptcy proceedings is a discrete question that is not presented here. 

Admittedly, the wording of our statement of the question presented suggests otherwise in 

its reference to settlements “with bankrupt entities,” but the facts of this case do not 

appear to involve any party in that status. Moreover, the language is confusing because 

the bankruptcy trusts, as such, are not bankrupt. 
[J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 14

Moreover, nothing in Bankruptcy Code § 524(g)(1)(B) necessitates excluding 

bankruptcy trusts from a verdict sheet for purposes of apportionment. Even where that 

section applies, exclusion is necessary only when the action in question seeks some form 

of collection from the trust in question. The parties, having settled their claims with the 

trusts at issue, have no further claims to litigate. Absent a far clearer federal directive, 

and without any evidence that applying the FSA to settling bankruptcy trusts interferes 

with the administration of the Bankruptcy Code, to find that Subsection 524(g)(1)(B) 

displaces the FSA conflicts with the principle that, “in discerning whether Congress 

intended to preempt state law, there is a presumption against preemption.” Dooner v. 

DiDonato, 971 A.2d 1187, 1194 (Pa. 2009) (emphasis in original).

I agree with the Majority that FSA § 7102(a.2) requires “appropriate requests and 

proofs” of liability before a settling bankruptcy trust may be submitted to a jury for 

purposes of apportionment, and only upon such submissions may a jury be allowed to 

 

Relatedly, the Majority opines that, as a function of the channeling injunctions, 

releases may be sought from, and liability for purposes of apportionment attributed to, 

bankruptcy trusts rather than the original parties. Cf. Maj. Op. at 37 n.25. This view is 

rooted in part on the basis that the original tortfeasors did “not ‘enter[] into a release’ with 

the Roveranos and consequently cannot be apportioned liability because they do not 

meet the conditions of Section 7102(a.2).” Id. I am not entirely persuaded of this latter 

premise. The Roveranos appended one of the releases to its brief in this Court as 

Appendix H. The release appears on the letterhead of “Armstrong World Industries, Inc. 

Asbestos Personal Injury Settlement Trust.” While characterizing the Roveranos’ claims 

as directed to the trust, the release nonetheless applies, by its terms, to relieve of future 

claims not only the trust, but also “the Debtors, the Debtor’s Estates and the Reorganized 

Debtors,” et al., Debtor having been defined elsewhere in the release as Armstrong World 

Industries, Inc., itself. This may be pro forma and have little bearing upon the Majority’s 

observation, depending on how the TDPs may inform the matter, but it counsels vigilance

in predicating any legal conclusions on the assumption that the original tortfeasors, having 

exited bankruptcy, may have no part whatsoever in any strict liability proceedings, related 

to apportionment or otherwise—subject, of course, to any preempting federal statutory 

law or controlling federal court orders.
[J-10A-2019 and J-10B-2019] [MO: Mundy, J.] - 15

determine whether a settling party was liable for the plaintiff’s harm. But we granted 

review to consider whether, not under what precise circumstances, settling bankruptcy 

trusts may be included on a verdict sheet for purposes of apportionment.8 Because the 

trial court precluded the submission of such proofs before trial commenced, it never had 

cause to assess the adequacy of any proofs JCI and Brand might have secured through 

discovery and submitted into evidence. 

In short, settling bankruptcy trusts may be included on a verdict sheet for purposes 

of apportionment, provided that the party seeking to do so supplies the court with proof 

of settlement and, separately, evidence of liability sufficient to establish a basis upon 

which a jury may conclude that such liability should attach. Should the jury reach that 

conclusion, the trust must be counted in dividing the verdict per capita. This conclusion 

flows inexorably from the prevailing statutory language chosen by the General Assembly. 

Any contrary ruling necessarily would flow from principles and procedures that the 

legislature discarded when it enacted the 2011 amendments to the FSA.

 

 

8 Relative to this issue, this Court granted review on the following question:

Whether, under this issue of first impression, the Superior Court 

misinterpreted the Fair Share Act in holding that the Act requires the jury to 

consider evidence of any settlements by the plaintiffs with bankrupt entities 

in connection with the apportionment of liability amongst joint tortfeasors?

Roverano v. John Crane, Inc., 190 A.3d 591 (Pa. 2018) (per curiam).