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PRIOR PRINTER'S NO. 654
PRINTER'S NO. 1152
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
95
Session of
2015
INTRODUCED BY FARNESE, FONTANA, BREWSTER, COSTA, TARTAGLIONE,
HAYWOOD, YUDICHAK, BOSCOLA, BLAKE, LEACH, KITCHEN, WOZNIAK,
GREENLEAF, EICHELBERGER, ALLOWAY AND VULAKOVICH,
MARCH 31, 2015
AS AMENDED ON THIRD CONSIDERATION, JUNE 30, 2015
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, in particular rights and
immunities, providing for immunity for CONSTITUTIONALLY
protected communications.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The General Assembly finds and declares that
there has been a disturbing increase in lawsuits brought
primarily to chill the valid exercise of the constitutional
rights of freedom of speech and petition for the redress of
grievances. The General Assembly also finds and declares that it
is in the public interest to encourage continued participation
in matters of public significance and that this participation
should not be chilled through abuse of the judicial process.
This act is intended to grant immunity to those groups or
parties exercising this right and shall be construed broadly.
Section 2. Title 42 of the Pennsylvania Consolidated
Statutes is amended by adding a section to read:
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ยง 8340.3. Immunity for CONSTITUTIONALLY protected
communications.
(a) General rule.--A person who engages in any
CONSTITUTIONALLY protected communication shall be immune from
any civil action for claims based upon such communication. If a
legal action instituted against any party that is based on,
relates to or is in response to a party's CONSTITUTIONALLY
protected communication, that party may file a motion to dismiss
the legal action as provided in this section.
(b) Motion to dismiss.--
(1) A motion to dismiss under this section may be filed
at any time before the passage of 30 days after the filing of
a responsive pleading by the moving party or, in the court's
discretion, at any later time upon terms it deems proper.
(2) The motion to dismiss shall be scheduled by the
clerk of the court PROTHONOTARY for a hearing not more than
30 days after the service of the motion unless the docket
conditions of the court require a later hearing.
(3) An order granting or denying a motion to dismiss
shall be immediately appealable.
(4) In the event that a court grants a motion to dismiss
but fails to award costs, fees or damages, as required, the
order shall also be immediately appealable and the moving
party may file a separate action to recover its costs, fees
and damages.
(c) Stay of discovery.--All discovery proceedings in the
action shall be stayed upon the filing of a motion to dismiss
under this section, which stay shall remain in effect until the
entry of the order ruling on the motion. The court, on its own
motion or on motion and for good cause shown, may order that
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specified discovery be conducted limited to matters pertinent to
the motion filed under this section.
(d) Determination by court.--
(1) The court shall dismiss any action arising from any
CONSTITUTIONALLY protected communication if the court
initially determines that the moving party establishes by a
preponderance of the evidence that the claim is based upon a
CONSTITUTIONALLY protected communication and, having made
that initial determination, the court determines that the
nonmoving party has not established by clear and convincing
evidence a probability of prevailing on those portions of the
claim which are not based upon a , IN WHOLE OR IN PART, OR ARE
NOT SEPARABLE FROM, A CONSTITUTIONALLY protected
communication.
(2) In making its determinations, the court shall
consider the pleadings, and any supporting and opposing
pleadings and affidavits or other evidence submitted stating
the facts upon which the liability or defense is based.
(3) If the court determines that the moving party is not
entitled to the immunities granted under this section, AS TO
ALL OR PART OF THE CLAIM, THAT CLAIM OR PART THEREOF SHALL
PROCEED AS A CIVIL ACTION PURSUANT TO GENERAL RULES. IN THAT
EVENT neither that THE determination THAT THE CLAIM IS NOT IN
WHOLE OR IN PART BASED ON CONSTITUTIONALLY PROTECTED
COMMUNICATION nor the fact of that determination shall be
admissible in evidence at any later stage of the case or in
any subsequent action and no burden of proof or degree of
proof otherwise applicable shall be affected by that
determination in any later stage of the case or in any
subsequent proceeding.
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(e) Authorized recovery.--
(1) A moving party who prevails IN WHOLE OR IN PART on a
motion to dismiss under this section shall be entitled to
recover attorney fees and costs from any party who has filed
an action, part or all of which has been dismissed under
subsection (b)(1).
(2) The court shall hold a hearing, to be scheduled by
the clerk PROTHONOTARY not more than 30 days from the ruling
under this section in favor of the moving party, to determine
damages to be assessed against the nonmoving party. In
determining the damages, the court may consider any change in
present or future operating costs to the moving party. The
damages shall be a minimum of $10,000. Any attorney fees,
costs or damages due under this section shall be payable by
any person or group of persons acting, directly or
indirectly, in the interest of the party deemed responsible
for the attorney fees, costs or damages.
(3) If the court finds that a motion to dismiss is
frivolous or is solely intended to cause unnecessary delay,
the court shall award costs and reasonable attorney fees to
the party prevailing on the motion. Any attorney fees, costs
or damages due under this section shall be payable by any
person or group of persons acting, directly or indirectly, in
the interest of the party deemed responsible for such
attorney fees, costs or damages.
(f) Claims in other jurisdiction.--In the event that a claim
is brought or threatened against a citizen of this Commonwealth
in another jurisdiction the defendant may file a motion to
dismiss under this section in the courts of this Commonwealth.
(g) (F) Construction.--This section shall be interpreted
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broadly as to make its applicability the norm, not the
exception, and any doubt regarding whether a communication is
protected speech shall be resolved in favor of the position that
it is.
(h) (G) Definitions.--As used in this section the following
words and phrases shall have the meanings given to them in this
subsection:
"CONSTITUTIONALLY PROTECTED COMMUNICATION." ANY GOOD FAITH
COMMUNICATION IN FURTHERANCE OF A RIGHT TO PETITION OR A RIGHT
TO FREE SPEECH, WHICH RIGHT IS EXERCISED IN CONNECTION WITH AN
ISSUE OF PUBLIC CONCERN OR SOCIAL SIGNIFICANCE UNDER THE
FOLLOWING CIRCUMSTANCES:
(1) ANY WRITTEN, ORAL, AUDIO, VISUAL OR ELECTRONIC
STATEMENT OR WRITING IN CONNECTION WITH AN ISSUE UNDER
CONSIDERATION OR REVIEW BY A LEGISLATIVE, EXECUTIVE,
JUDICIAL, ADMINISTRATIVE OR OTHER GOVERNMENTAL BODY OR IN
ANOTHER GOVERNMENTAL OR OFFICIAL PROCEEDING;
(2) ANY WRITTEN, ORAL, AUDIO, VISUAL OR ELECTRONIC
STATEMENT OR WRITING THAT IS REASONABLY LIKELY TO ENCOURAGE
CONSIDERATION OR REVIEW OF AN ISSUE BY A LEGISLATIVE,
EXECUTIVE, JUDICIAL, ADMINISTRATIVE OR OTHER GOVERNMENTAL
BODY OR IN ANOTHER GOVERNMENTAL OR OFFICIAL PROCEEDING;
(3) ANY WRITTEN, ORAL, AUDIO, VISUAL OR ELECTRONIC
STATEMENT OR WRITING REASONABLY LIKELY TO ENLIST PUBLIC
PARTICIPATION IN AN EFFORT TO EFFECT CONSIDERATION OF AN
ISSUE BY A LEGISLATIVE, EXECUTIVE, JUDICIAL, ADMINISTRATIVE
OR OTHER GOVERNMENTAL BODY OR IN ANOTHER GOVERNMENTAL OR
OFFICIAL PROCEEDING; OR
(4) ANY WRITTEN, ORAL, AUDIO, VISUAL OR ELECTRONIC
STATEMENT OR WRITING THAT FALLS WITHIN THE PROTECTION OF THE
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RIGHT TO PETITION GOVERNMENT OR THE RIGHT TO FREE SPEECH
UNDER THE CONSTITUTION OF THE UNITED STATES OR THE
CONSTITUTION OF PENNSYLVANIA.
"Governmental proceeding." A proceeding, other than a
judicial proceeding, conducted by an officer, official or body
of this State or a political subdivision of this State,
including a board or commission, or by an officer, official or
body of the Federal Government.
"Moving party who prevails." A party who files a motion to
dismiss under this section if, after the filing, the party
against whom the motion is filed withdraws either the entire
action or any part of the complaint pertaining to a protected
communication.
"Protected communication." Any good faith communication in
furtherance of a right to petition or a right to free speech,
which right is exercised in connection with an issue of public
concern under the following circumstances:
(1) any written, oral, audio, visual or electronic
statement or writing in connection with an issue under
consideration or review by a legislative, executive,
judicial, administrative or other governmental body or in
another governmental or official proceeding;
(2) any written, oral, audio, visual or electronic
statement or writing that is reasonably likely to encourage
consideration or review of an issue by a legislative,
executive, judicial, administrative or other governmental
body or in another governmental or official proceeding;
(3) any written, oral, audio, visual or electronic
statement or writing reasonably likely to enlist public
participation in an effort to effect consideration of an
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issue by a legislative, executive, judicial, administrative
or other governmental body or in another governmental or
official proceeding; or
(4) any written, oral, audio, visual or electronic
statement or writing that falls within the protection of the
right to petition government under the Constitution of the
United States or the Constitution of Pennsylvania.
Section 3. This act shall take effect in 60 days.
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