Baker v. ACandS

755 A.2d 664, 562 Pa. 290, 2000 Pa. LEXIS 1572

• Court: Supreme Court of Pennsylvania
• Decided: June 26, 2000
• Docket: 43 E.D. Appeal Docket 1999
• Status: Published

Opinions

CAPPY, Justice.

OPINION

The question at issue concerns which method of set-off applies in this strict liability matter: pro tanto or pro rata set-off. For the following reasons, we find that pro tanto methodology of set-off is warranted. Accordingly, we now affirm the order of the Superior Court.

Albert and Suzanne Baker filed a civil action against several manufacturers and/or sellers of asbestos-containing products, seeking damages resulting from Mr. Baker’s exposure to asbestos and Mrs. Baker’s loss of consortium. This first complaint was dismissed without prejudice on January 13, 1994 as Mr. Baker had not manifested any symptoms, impairment, or disability due to his exposure to asbestos.

Mr. Baker subsequently developed malignant mesothelioma. The Bakers amended their complaint and reactivated their case on March 31, 1995. The trial was reverse-bifurcated, with the medical causation and damages phase being tried before a jury. On June 2, 1995, the jury entered an award of $2,000,000.00 in favor of Mr. Baker and $200,000.00 for Mrs. Baker’s loss of consortium claim.

Prior to the start of the liability phase, several defendants were dismissed from the case on motions for summary judgment. Additionally, the Bakers settled with four of the remaining defendants. The joint tortfeasor settlement agreements the Bakers executed with Owens-Coming Fiberglass Corporation (“Owens-Corning”), Pfizer, Inc. (“Pfizer”), and Asbestos Claims Management Corporation (“ACME”) (formerly known as National Gypsum) specified that they were pro rata releases.¹

The Bakers also settled with the Manville Personal Injury-Settlement Trust (“the Manville Trust”) pursuant to a joint tortfeasor release. As stated by the Superior Court below, the Manville Trust was created in 1988 “to pay all health claims brought against the Johns-Manville Corporation (‘Man-ville’) as a result of asbestos exposure.” Super. Ct. slip op. at 6. The settlement agreement the Bakers and the Manville Trust executed specified that the release was a pro tanto release, for which the Manville Trust paid $30,000 in consideration.²

Prior to the commencement of the liability phase, Mr. Baker died. Mrs. Baker, as administratrix of Mr. Baker’s estate, was thereafter substituted as a party for Mr. Baker. At the liability phase of the trial, the only remaining defendant was ACandS, against whom Mrs. Baker proceeded on a strict liability theory only. The trial court, sitting without a jury, found ACandS, Owens Corning, Pfizer, ACME, and the Man-ville Trust jointly liable. The trial court proceeded to apportion the damages among each of these defendants, determining that each was responsible for an equal, one-fifth share of the award, or $440,000.00.

The trial court then turned to the question of which set-off method should apply in determining how much of the Manville Trust’s portion of the verdict ACandS could set-off. The trial court rejected Mrs. Baker’s contention that the pro tanto method applied, and instead applied the pro rata method, thereby setting off the Manville Trust’s entire $440,000.00 share of the verdict. Thus, it entered judgment against ACandS (the only non-settling, remaining defendant) in the amount of $440,000.00.³

Both Mrs. Baker and ACandS appealed to the Superior Court. Mrs. Baker claimed that the terms of the pro tanto release between her and the Manville Trust should be enforced. The effect of enforcing the terms of the release would be that ACandS would be liable for the $410,000.00 shortfall between the consideration the Manville Trust paid in settlement (i.e., $30,000.00) and the Manville Trust’s allocated share of the damages awarded to the plaintiff (i.e., $440,000.00). ACandS appealed to the Superior Court on the basis that the evidence was insufficient to show that it was liable.

The procedural history of this matter before the Superior Court is rather involved. Initially, a three-judge panel of the Superior Court filed an opinion on May 18, 1998; this opinion was withdrawn by order of the court on June 1, 1998. On June 2, 1998, another opinion was filed in this matter which affirmed the order of the trial court. Subsequently, on July 30, 1998, the court granted reargument on the motion of Mrs. Baker. Our analysis of this matter is limited to a discussion of the Superior Court’s en banc opinion which was filed on March 30, 1999. In that opinion, the Superior Court rejected ACandS’ claim that the evidence was insufficient to support the verdict; it therefore affirmed that portion of the trial court’s order which denied ACandS’ motion for judgment notwithstanding the verdict.

The majority of the Superior Court, however, found that the trial court erred when it did not enforce the terms of the pro tanto release, and therefore reversed the trial court’s denial of Mrs. Baker’s request to mold the verdict pursuant to the pro tanto release. Thus, the Superior Court directed that Mrs. Baker could recover from ACandS the shortfall between the consideration she received from the Manville Trust in the settlement and the amount of the Manville Trust’s share of the damages.

ACandS subsequently filed a petition for allowance of appeal. ACandS abandoned its sufficiency of the evidence claim in its request that this court hear its appeal, and instead presented the sole issue of whether the Superior Court’s determination of the set-off issue was correct. We granted allocatur.⁴

At the outset of our review, we note that the parties agree that they are bound by the terms of the TDP. The TDP, in turn, contains a rather involved mechanism for determining how set-off is to be calculated. TDP § H.3. Mrs. Baker and ACandS disagree about which particular subsection of TDP § H.3 applies to this matter. These arguments are fairly complicated. Yet, it is not necessary for us to resolve the rather thorny issue of which of these particular subsections of the TDP applies as both of these subsections declare that the method for performing the set-off calculation is to be made with reference to state law. See TDP H.3.(c) and (f). Thus, we can now turn to the crux of this dispute, which is whether state law mandates that ACandS should receive a pro tanto or pro rata set-off.

To answer this question, we turn to the Uniform Contribution Among Tort-feasors Act, 42 Pa.C.S. §§ 8321-8327 (“UCA-TA”). This is a comprehensive act which dictates the effect of a release as to other tortfeasors, the method for computing set-off, and under what circumstances an action in contribution is to be allowed. The provision which controls set-off is found at 42 Pa.C.S. § 8326. That provision states that a release by the plaintiff of one tortfeasor

does not discharge the other tort-feasors unless the release so provides, but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid.

42 Pa.C.S. § 8326.

Thus, in Pennsylvania, the UCATA contemplates three separate set-off scenarios. First, if the settlement agreement is silent, the set-off mechanism defaults to a pro tanto set-off and the nonsettling defendant is entitled to have the verdict reduced by the amount of consideration paid by the settling tortfeasor. In the second scenario, where the settlement agreement specifically provides for a pro tanto set-off, the UCATA envisions that such a specific election will always control.

The third scenario is where the settlement agreement specifies a form of set-off other than a pro tanto set-off. As stated above, § 8326 provides that the settling parties may opt for another set-off “in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid.” 42 Pa.C.S. § 8326. In other words, the settling parties may opt for a set-off mechanism such as a pro rata set-off. Application of such a pro rata set-off would allow the nonsettling tortfeasor to reduce the amount of money owed to the plaintiff in an amount equal to the settling defendant’s apportioned share of the verdict. For example, suppose that there are two joint tortfeasors and one settles prior to trial pursuant to a pro rata release. It is subsequently determined that each joint tortfeasor is liable for 50% of a $100,000.00 verdict. The nonsettling tortfeasor is entitled to have the $100,000.00 verdict, the entirety of which it is obligated to pay as a joint and severally liable tortfeasor, reduced by $50,000.00, or 50% of the verdict.

Yet, the UCATA does place restrictions on when a specific pro rata election will be allowed to operate. Section 8326 specifies that such a choice will become operative only if such a pro rata set-off would yield a set-off figure which is higher than the consideration paid by the settling tortfeasor. To employ the same example used supra, if the consideration actually paid for the settlement was $60,000.00, the pro rata election would not become operative because the pro rata share of $50,000.00 is less than the amount paid in settlement. In such a scenario, the pro tanto set-off figure would apply.

Application of 42 Pa.C.S. § 8326 to the matter sub judice reveals that ACandS should receive a pro tanto, rather than a pro rata, set-off. The settlement agreement entered into by the Bakers and the Manville Trust specified that it was a pro tanto release. Furthermore, the release stressed that it “does not provide, and shall not be construed to provide, for a reduction, to the extent of the pro rata share of the [Manville] Trust, of [the Bakers’] damages recoverable against all other tortfeasors.” Bakers-Manville Trust Settlement Agreement, dated May 31,1995, at 3. Thus, set-off is capped at the amount of consideration paid by the Manville Trust to the Bakers.

ACandS, however, argues that the only form of set-off allowed in this matter is pro rata. It presents several arguments in support of this point. Its first such argument is that the UCATA, which would compel a pro tanto set-off under the facts of this case, applies only in negligence cases, and has no application to strict liability matters. In support of this argument, ACandS relies on the Superior Court’s decision in Ball v. Johns-Manville Corp., 425 Pa.Super. 369, 625 A.2d 650, 658 (1993).

We reject ACandS’ argument for several reasons. First, our own reading of Ball leads us to conclude that the Superior Court in that matter did not hold that the UCATA applies only to negligence, rather than strict liability, actions.

Second, to the extent that Ball can be read for the proposition that the UCATA has no application in strict liability actions, it was wrongly decided. This court has never interpreted the UCATA as applying only to negligence actions. The portion of Ball which ACandS claims stands for the proposition that UCATA does not apply in strict liability actions is nothing more than a direct quote from Mr. Justice Papadakos’ concurring opinion in Walton v. Avco Corp., 530 Pa. 568, 610 A.2d 454 (Pa.1992). Again, we find nothing in that concurring opinion in Walton which would stand for the proposition that UCATA is inapplicable in strict liability actions. Furthermore, even if we assume arguendo that the concurring opinion did stand for such a proposition, such a conclusion would be of no moment. That concurring opinion was not joined by any other justice, and thus clearly is of no precedential value.

Finally, we can find no support in the UCATA itself for the proposition that it applies only in negligence actions. The language of the UCATA is very broad and clearly applies to all types of actions. If we were to adopt ACandS’ analysis, and limit the UCATA to negligence actions, we would essentially be engrafting a limitation on the statute which the legislature did not see fit to impose. This we decline to do.

Next, ACandS contends regardless of what the UCA-TA provides, set-off in strict liability actions can only be pro rata. In support of this conclusion, ACandS asserts that joint tortfeasors in a strict liability action are liable only for their respective, equally apportioned shares of the verdict; they cannot be compelled to pay more than their equally apportioned shares and have no right to contribution. As a corollary, ACandS claims that “settlement by one joint tortfeasor reduces the liability of a non-settling defendant by the settling defendant’s pro rata share and not the consideration paid for a release.” ACandS’ Brief at 21. In support of its argument, ACandS relies heavily on this court’s decisions in Walton, supra, and Charles v. Giant Eagle, 513 Pa. 474, 522 A.2d 1 (1987).

This analysis is faulty for several reasons. First, ACandS misapprehends the interaction between apportionment of liability for the injury and the principle that one joint tortfeasor may be compelled to satisfy the entire money judgment pursuant to the doctrine of joint and several liability. In strict liability actions, liability is indeed apportioned equally among joint tortfeasors. Walton, supra. In a strict liability action, apportionment based upon fault is impermissible as this tort theory does not contain an element of fault. This is in contrast to negligence actions where liability is allocated among joint tortfeasors according to percentages of comparative fault. 42 Pa.C.S. § 7102.

Yet, the declaration that liability is to be apportioned equally in a strict liability matter is not synonymous with the proposition that a tortfeasor may be compelled to pay only its share of the judgment and no more. In Pennsylvania, joint tortfeasors, including those in strict liability actions, are jointly and severally liable. See Incollingo v. Ewing, 474 Pa. 527, 379 A.2d 79, 85 (1977). Thus, the plaintiff may recover the entire damages award from only one of the joint tortfeasors. That joint tortfeasor’s recourse for paying more than its proportionate share of the verdict is to sue the nonpaying joint tortfeasors in contribution. See 42 Pa.C.S. § 7102; 42 Pa.C.S. §§ 8324(c) and 8327.

Second, ACandS is incorrect in its conclusion that joint tortfeasors in a strict liability matter have no right to seek contribution from each other. ACandS draws this conclusion from this court’s decision in Walton, supra. In that matter, Glenda Walton sued Avco Corporation (“Avco”) and Hughes Helicopter, Inc. (“Hughes”) on a theory of strict liability. Avco settled with Walton prior to trial for $922,355.00. The settlement agreement between Avco and Walton stated, inter alia, that Avco preserved its right to recover against Hughes in contribution; the settlement agreement executed by the Walton and Avco release did not, however, release Hughes from liability to Walton.

The matter went to trial against Hughes alone; the jury returned a verdict in favor of Walton in the amount of $891,203.00. Avco then sought contribution from Hughes; the trial court granted this request, and awarded contribution to Avco against Hughes in the amount of fifty percent of the jury’s award in the Walton case.

On appeal to this court, the question presented was whether Avco could recover in contribution against Hughes, or whether Hughes owed its share of the verdict to Walton. This court found that Avco had no right of contribution against Hughes. Although recognizing that the Walton-Avco settlement agreement purported to preserve Avco’s right of contribution against Hughes, we found this portion of the settlement unenforceable because Avco could not “reserve a right to contribution that it did not have in the first place.” Walton, 610 A.2d at 461. ACandS focuses on this statement, claiming that it stands for the proposition that contribution is never allowed among joint tortfeasors in a strict liability context.

ACandS is incorrect. This passage in Walton was not focusing on the fact that the action sounded in strict liability. Rather, we stated that Avco was barred from instituting a contribution action because Avco’s settlement agreement with Walton had not released Hughes from liability as well. We stated that unless a settlement agreement releases the nonsettling as well as the settling joint tortfeasor, the settling joint tortfeasor may not pursue a contribution action against the joint tortfeasor who chose to encounter the uncertainties of litigation. Id.⁵ We in no fashion, however, stated that an action in contribution cannot be maintained in the context of a strict liability lawsuit.

ACandS’ citation to Charles, supra, is similarly unavailing. In Charles, Giant Eagle Markets (“Giant Eagle”) and Stanley Magic Door (“Stanley”) were sued by George Charles (“Charles”). Giant Eagle settled prior to trial for $22,500.00; in that release, the settling parties stated that any verdict Charles obtained would be set-off by Giant Eagle’s pro rata share.

The matter then proceeded to trial against Stanley alone. The jury returned a verdict in which it set the damages at $31,000.00 and found Giant Eagle sixty percent negligent and Stanley forty percent negligent. Thus, Giant Eagle’s proportionate share of the verdict was $18,600.00, $3,900.00 less than what it had paid in settlement.

This presented a situation where either Charles or Stanley would receive a windfall: if Charles recovered Stanley’s $12,400.00 share of the verdict from Stanley, Charles would have received $3,900.00 more for his injury than the amount at which the jury had valued it; on the other hand, if Stanley were given a pro tanto set-off representing the amount of consideration paid in settlement by Giant Eagle, Stanley would pay $3,900.00 less than its share of liability as found by the jury.

We determined that in windfall situations such as that presented by Charles, the plaintiff rather than the nonsettling tortfeasor should benefit. We stated that the maximum that a nonsettling tortfeasor’s liability may be set-off is the portion of the verdict apportioned to .the settling tortfeasor. In other words, the nonsettling tortfeasor may not enjoy a set-off which would lower its out-of-pocket expense below its own allocated share of the liability. We thus opted for the pro rata set-off method, and required Stanley to pay its full share of the verdict.

Charles, however, does not command that ACandS is entitled to a pro rata set-off. First, the rationale of Charles would actually allow the choice of pro tanto set-off specified in the Bakers-Manville Trust settlement agreement to be operative. We stated in Charles that the settling parties could opt for a set-off method so long as the portion of the verdict apportioned to the settling tortfeasor exceeded the consideration paid for the release. Id. at 4. As the Manville Trust’s $440,000.00 share of the verdict clearly exceeds the $30,000.00 it paid in the settlement agreement with the Bakers, the pro tanto choice of set-off is operative pursuant to Charles.

Furthermore, Charles is not directly on point with the matter sub judice. The driving force behind the Charles decision was that we were dealing with a windfall situation. The matter sub judice, however, is not a windfall situation. We are not being asked to choose between results where either Mrs. Baker would recover more than the jury’s verdict or ACandS would pay less than its $440,000.00 share. The peculiar policy concerns which compelled this court’s decision in Charles are simply absent from this matter. Thus, ACandS’ contention that it can utilize the Charles holding to support its claim that it is entitled to a pro rata set-off, and thus avoid application of 42 Pa.C.S. § 8326, are unavailing.⁶ We therefore hold that the Superior Court correctly determined that the appropriate set-off method in the matter sub judiee is pro tanto.

Finally, ACandS contends that even if this court agrees with the Superior Court that the set-off method here is pro tanto, the Superior Court nonetheless erred in its computation of the set-off. ACandS contends that the Superior Court concluded that after the pro tanto set-off was effectuated, ACandS would be liable for its $440,000.00 share of the verdict plus the $410,000.00 shortfall between the Manville Trust’s share of the verdict and the consideration that the Manville Trust paid to the Bakers in settlement. ACandS claims this is an erroneous way to calculate the pro tanto set-off. Rather, it contends that the proper method to calculate the pro tanto set-off would be first to reduce the entire $2,200,000.00 verdict by $30,000.00. Only at that juncture, ACandS posits, should the court apportion shares of liability. ACandS proposes that in apportioning these shares, the $2,170,000.00 should be divided four ways, with ACandS, Owens Corning, Pfizer, and ACME each being accorded an equal share. ACandS does not, however, propose allocating a share of the liability to the Manville Trust in its computation. If ACandS’ proposed calculations were utilized, the proportionate share of the verdict for ACandS, Owens Corning, Pfizer, and ACME would be $542,500.00. As Owens Corning, Pfizer, and ACME executed pro rata releases, ACandS would be liable for only its $542,500.00 share of the verdict.-

We find that ACandS’ method of computing the set-off to be erroneous. The primary flaw that we perceive with ACandS’ method is that the Manville Trust is on one hand considered a responsible tortfeasor, and thus ACandS is allowed to take a set-off which takes into account the Bakers-Manville Trust settlement agreement, and yet on the other hand, the Manville Trust is not apportioned an equal share of the liability. These two principles seem irreconcilable. The UCATA provides that a non-settling defendant is not entitled to a set-off in light of the settling defendant’s release unless the settling and non-settling defendants are both deemed to be joint tortfeasors. 42 Pa.C.S. § 8326. Therefore, ACandS would not be entitled to a set-off unless the Manville Trust is deemed a joint tortfeasor. Once the Manville Trust is deemed to be a joint tortfeasor, then ineluctably it must be apportioned an equal share of the liability. See Walton, supra. In light of these basic principles of law, we cannot see how it is possible for us to adopt ACandS’ position which on one hand views the Manville Trust as a joint tortfeasor, and on the other avoids apportioning an equal share of the liability to the Manville Trust.

We realize that it could be argued that by reducing the $2,200,000.00 verdict by the $30,000.00 the Manville Trust paid in settlement, the Manville Trust’s share of the liability has been accounted for and there is no avoidance of apportioning liability to all joint tortfeasors. Yet, this is also problematic. If we were to deem that the consideration paid by the Manville Trust effectively satisfies the entirety of the Manville Trust’s share of liability, we would in essence be stating that the set-off allowed here is pro rata in nature as the Manville Trust’s apportioned share of liability would be reduced to zero. That, of course, runs counter to our analysis conducted supra wherein we concluded that ACandS is entitled to a pro tanto set-off.

We therefore find that the proper method in calculating set-off is first to apportion shares of liability. In the matter sub judice, the trial court correctly determined that in this strict liability action, the verdict was to be apportioned equally among ACandS and the four settling defendants. See Walton, supra. Thus, each defendant’s share of the liability is $440,-000.00.

The next step in this process is to determine which set-off method applies with regard to each individual settling tortfeasor. As the settlement agreements between Mrs. Baker and Owens Corning, Pfizer, and ACME each provided for a pro rata set-off, ACandS will be allowed to set-off each of these defendants’ apportioned shares of the verdict, or an aggregate of $1,320,000.00. As to the Manville Trust’s share, ACandS is entitled to a pro tanto settlement in the amount of $30,000.00.⁷ Thus, ACandS is jointly and severally liable for both its share of the verdict as well as the shortfall between the Manville Trust’s share and the $30,000.00 it paid in settlement, or for $850,000.00.⁸

For the foregoing reasons, we affirm the order of the Superior Court.

Justice SAYLOR files a concurring opinion in which Justice ZAPPALA and Justice NEWMAN join.

1 . Where a plaintiff and settling defendant sign a pro tanto release, then the plaintiff’s ultimate recovery against the nonsettling joint tortfeasors is the total award of damages reduced by the amount of consideration paid for the release. In contrast, if the parties sign a pro rata release (which is also known as an "apportioned share set-off” release), then the plaintiff’s ultimate recovery against the nonsettling tortfeasors is the total award of damages reduced by the settling party’s allocated share of the liability. See generally L. Komhauser and R. Revesz, Settlements Under Joint and Several Liability, 68 N.Y.U.L.Rev. 427 (1993).

2 . The $30,000.00 figure was arrived at pursuant to the figure given by the Manville Trust Disposition Process ("TDP"). The TDP controls the allocation of funds to persons with claims against the Manville Trust.

The TDP has its genesis in a class action suit filed in 1990 to restructure the Manville Trust after it became apparent that the assets of Manville Trust would cover only approximately one tenth of anticipated claims. The goal of the TDP was to spread the burdens of the Manville Trust’s limited resources over all claimants. Thus, all claimants are to get some compensation, although no award will come close to compensating the claimants in full. This was a mandatory, non-opt-out settlement class.

3 . The trial court also assessed delay damages against ACandS in the amount of $17,386.00. We note that the calculation of delay damages is not at issue in this appeal.

4 . As the question before us is one of law, our scope of review is plenary. Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167, 1170 (1995). Furthermore, our standard of review requires us to examine the lower tribunal’s ruling for an abuse of discretion or error of law. See In re T.J., 559 Pa. 118, 739 A.2d 478, 481 (1999).

5 . While this portion of our Walton opinion did not make specific reference to the UCATA, this passage was clearly paraphrasing 42 Pa.C.S. § 8324(c) of the UCATA. That provision of the UCATA states that a settling joint tortfeasor "is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement.”

6 . The majority opinion in Charles expressed the view that § 8326 could be squared with its holding. In particular, it focused on the language that the set-off was to be in the amount of the consideration paid "or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid.” 42 Pa.C.S. § 8326. The majority read this provision as stating that the settling parties could opt for a pro tanto set-off so long as such a pro tanto set-off would not exceed the settling tortfeasor’s proportionate share of the verdict. Charles, 522 A.2d at 4.

Mr. Justice Zappala dissented vigorously in Charles, contending that the majority was rewriting § 8326. He claimed that the plain meaning of § 8326 was the exact opposite of what the majority made it out to be. Specifically, he claimed that § 8326 stands for the proposition that "if the proportion of reduction provided by the release is greater than the amount of consideration paid for the release, such proportion of reduction prevails, but if, on the other hand, the consideration paid for the release is greater than the proportion of reduction provided by the release, then the amount of the consideration paid for the release prevails.” Charles, 522 A.2d at 12 (citation omitted) (Zappala, J., dissenting).

We are not able to reassess at this juncture the rationale advanced by the majority and the position espoused by our learned colleague Mr. Justice Zappala in the Charles matter. As stated supra, the matter sub judiee does not present a windfall situation and thus is not squarely on point with Charles. We must therefore wait for a matter where a windfall situation is presented if we choose to revisit our holding in Charles.

7 . We are aware of the fact that a federal district court, in calculating what the set-off which would be allowed for the Manville Trust’s share pursuant to Maryland law, adopted a method of calculation which is similar to the one proposed by ACandS. Findley v. Falise, 929 F.Supp. 1 (E.D.N.Y.1996). Yet, that opinion does not aid us in analyzing this issue. The learned district court judge provided no reasoning for his holding other than the bald statement that "[i]t is not consonant with Maryland law to treat any release involving the Manville Trust strictly as a pro tanto or pro rata release as ordinarily contemplated by Maryland law.” Id. at 8. Without providing any analysis beyond that simple statement, we are unable to conclude that the approach crafted by the Findley court is a sound one.

8 . We note that in most situations where a settling defendant has executed a pro tanto release and the amount of consideration paid for the release is less than what the fact finder ultimately deems to be the settling defendant’s apportioned share of the liability, the nonsettling defendant who pays the plaintiff for this shortfall is entitled to sue the settling defendant in contribution. See 42 Pa.C.S. § 8327. Yet, it appears that ACandS does not have this avenue available to it. In an effort to preserve the limited funds available, the TDP has sharply curtailed contribution rights so that very few co-defendants may initiate such an action against the Manville Trust. See TDP H.2.-4. It does not appear that the TDP will allow ACandS to bring a contribution action which stems from the matter sub judice..