Testimony of Chancellor Edward F. Chacker
Senate Judiciary Committee
Public Hearing on Senate Bill 5

Room 8E/B, Capitol Building
Harrisburg, PA

November 22, 1999, 9:55 A.M.

Senator Greenleaf and members of the Senate Judiciary Committee, good morning.

I am Edward Chacker, Chancellor of the Philadelphia Bar Association, and I am pleased to have this opportunity to testify this morning along with many of my colleagues from throughout the State regarding proposed legislation known as Senate Bill 5 which will greatly affect the rights of individuals and their access to the justice system.

I want to thank you, Senator Greenleaf, and the members of the Committee, for giving me this opportunity to testify on behalf of the 14,000 members of the Philadelphia Bar Association. This is the State’s largest local bar association. In fact, we are larger than many state bar associations. I greatly appreciate the fact that the Committee made a special effort to give us this opportunity to be heard here today. I promise I will try not to bore you and I will not expound on the views of the Philadelphia Bar Association any longer than is necessary.

As I am sure all of the members of this Committee know, to lawyers the process is everything. And indeed process lies at the core of our whole concept of justice and our whole justice system. So I want to begin by telling you a little bit about the process which led the Philadelphia Bar Association to its position on Senate Bill 5.

I think it is important for you to know that as soon as the Philadelphia Bar Association was able to, we distributed a copy of the proposed legislation to all of our 54 committees of the Association and to each of our eight substantive law sections. These sections are: the Business Law Section; the Criminal Justice Section; the Family Law Section; the Probate Law Section; the Real Property Section; the Tax Law Section; the Public Interest Section and the Workers’ Compensation Section. From all of the committees and sections, we asked for comment and input.

We needed to be sure that we opened the doors to a full airing and full discussion of this legislation from every segment of our diverse, multifaceted profession. I think I can tell you today with absolute certainty that we succeeded in that effort.

Beginning in the summer and continuing into the fall, we accepted all available input and facilitated an ongoing dialogue on Senate Bill 5 in front of our broadly representative Board of Governors. We heard a point-by-point pro and con debate on Senate Bill 5 and engaged in wide-ranging discussion at two full-length Board meetings.

No view, no opinions and no spokespersons were barred. All positions were heard and equal time was given to everyone. Indeed, the views of both proponents and opponents of the legislation were carried in full, side-by-side, in our Philadelphia Bar Reporter newspaper and readers were invited to comment and give their input before any vote of our Board was taken. In addition to all of that, at every step of the way I personally made a special effort to encourage continuing debate and discussion on the subject. As the leader of the entire Philadelphia Bar Association, I pretty much kept my own counsel on this matter until it was time for an actual vote.

As our Bar Association considered SB5, we had to take note of an extensive report given to us by our State Civil Committee. That report is attached to our finally-adopted Resolution. That 18-page report criticized many of the provisions of the Bill, opposing the Bill for several reasons, but chiefly because it would establish a statute of repose to state law applicable to all defective products. The Committee also opposed the Bill because it would ask a jury to assess the proportionate amount of casual responsibility (as opposed to negligence) of the respective parties to a law suit. And of course the Bill would eliminate joint and several liability.

Within our Bar Association, the opponents of this Bill also included the Business Law Section which, after careful study, concluded that this legislation -- far from reducing litigation -- would actually create a hot-bed of litigation challenging its constitutionality. Indeed, Ohio’s version of this legislation was recently declared unconstitutional because it precludes a citizen’s right to trial by jury. Even the Chair of the Pennsylvania Bar Association’s Corporation, Banking and Business Law Section, William H. Clark, Jr. (who sits on our Business Law Executive Committee) saw no reason to support this Bill, stating that it “just strikes the wrong balance, as a matter of public policy, between the rights of injured people and the interests of the business community.”

Our Business Law Section also found that the Bill’s proposal to limit punitive damages to a flat rate and its treatment of joint and several liability were, and I quote, “equally troubling.”

I want to point out as part of our wide-ranging debate on the legislation, we also invited and heard from members of the State Civil Justice Commission which supports the legislation. We listened and carefully considered all of the many points raised by that group as well on two separate occasions at two different Board meetings. I have to say, however, after considering that Pennsylvania is 49th among states in the filing of civil law suits and realizing that the average amount of damage awards here is substantially lower than in many other states, we came to wonder: What is wrong with the law in Pennsylvania as it exists today? Why the great rush for change?

In the end, after many hours of consideration of this legislation and a very thorough airing, the Board of Governors of the Philadelphia Bar Association unanimously voted to oppose Senate Bill 5 because it is detrimental to the procedural and substantive rights of parties engaged in tort litigation in the Commonwealth of Pennsylvania. It would deny fundamental rights to the people of this state. It would erode the rights of injured consumers. And while doing all this, we are convinced that SB5 would have little or no beneficial impact on the other side of the scales. It will not decrease litigation. It will not be a remedy for a perceived litigation crisis which may not even exist in the first place. It will not help business. It will create no tangible and economic benefits to the citizens of the Commonwealth. And finally, the constitutionality of the legislation still continues to be in question.

We are pleased to be joined by other Bar Associations from the region and throughout the state in raising our concerns about this issue. As officers of the court, we feel a special obligation to work to protect the rights of ordinary people. This proposed legislation has united all of those who care about those rights. Both within our professional family and beyond -- in each individual Bar Association and among the many associations -- I have seen great unity on this issue. Very real and very serious concerns are raised regarding this legislation.

Please understand that we endorse and support all efforts to ensure that law suits filed in this state are meritorious and are fairly resolved. But we do not believe that this Bill is the means to such an end. We respectfully request the Committee and the legislature to oppose Senate Bill 5. Thank you.