Elder v. Orluck

FLAHERTY, Justice,

concurring.

I concur in the result, but write separately to note that certain artfully worded portions of the opinion authored by *420 Mr. Justice Larsen might lead the reader to an impression that “modern notions of fault and liability” require that the instant statutes be construed in a manner favorable to plaintiffs. Such is not the case. The purpose of the law should be and is to achieve equality and fairness irrespective of whether a party is a plaintiff or a defendant. Further, it could well be argued that it is inequitable to require a defendant who, individually, is less negligent than the plaintiff to pay the entire amount of the allowed recovery where the more negligent tortfeasor is unable to pay his proportionate share. Indeed, to this writer such a result appears most inequitable, and, in fact, more “harsh” than what Mr. Justice Larsen has termed the “harsh common law doctrine” of contributory negligence.

Nevertheless, the language employed by the legislature clearly contemplates defendants being made to pay more than their proportionate shares, with the burden being upon them to recover from co-defendants for such excess payments. The relevant statute provides: “The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.” 42 Pa.C.S.A. § 7102(b). Given such language in the statute, I am constrained to concur in the result. It is not for this Court, but rather for the legislature, to re-examine this language if unfortunate results such as this are to be avoided in the future. Until it does, alas, there will be few Memorial Day parades sponsored by communities such as Harrisville.

This concurring opinion is joined by HUTCHINSON and ZAPPALA, JJ.