PRIOR PRINTER'S NOS. 418, 1248, 1609, PRINTER'S NO. 2449 1632, 2444
No. 406 Session of 2001
INTRODUCED BY (PRIME SPONSOR WITHDRAWN), WAUGH, CORMAN, M. WHITE, TOMLINSON, THOMPSON AND EARLL, FEBRUARY 12, 2001
SENATE AMENDMENTS TO HOUSE AMENDMENTS, NOVEMBER 27, 2002
AN ACT 1 Amending Title 42 (Judiciary and Judicial Procedure) of the 2 Pennsylvania Consolidated Statutes, establishing a cause of 3 action for frivolous litigation; further providing for <-- 4 wrongful use of civil proceedings; and making an editorial 5 change. ACTION FOR UNAUTHORIZED ENACTMENT OR ENFORCEMENT OF <-- 6 LOCAL ORDINANCES GOVERNING AGRICULTURAL OPERATIONS; AND 7 PROVIDING FOR CERTAIN ATTORNEY FEES AND COSTS. 8 The General Assembly of the Commonwealth of Pennsylvania 9 hereby enacts as follows: 10 Section 1. Chapter 83 of Title 42 of the Pennsylvania <-- 11 Consolidated Statutes is amended by adding a subchapter to read: 12 SUBCHAPTER E 13 FRIVOLOUS LITIGATION 14 Sec. 15 8350.1. Frivolous litigation. 16 8350.2. Elements of cause of action. 17 8350.3. Procedure. 18 8350.4. Damages. 19 8350.5. Other remedies.
1 8350.6. Joint liability. 2 § 8350.1. Frivolous litigation. 3 (a) Cause of action established.--There is established a 4 separate cause of action for damages arising out of the filing 5 of a frivolous civil complaint, counterclaim or joinder 6 complaint by an attorney, the law firm of which the attorney is 7 a member or by any party who is not represented by an attorney. 8 The injured party must file this action in the same court and 9 division where the original action or matter was filed. This 10 action shall not be collateral to the original action and shall 11 proceed without reference to its status. 12 (b) Time for filing action.--An action brought pursuant to 13 this subchapter may be filed before the challenged proceeding on 14 the civil complaint, counterclaim or joinder complaint is 15 terminated. 16 (c) Relationship to other action.--The action established 17 under this subchapter is a separate cause of action than that 18 provided for under Subchapter E.1 (relating to wrongful use of 19 civil proceedings). A person may not be precluded from bringing 20 an action pursuant to Subchapter E.1 on the sole basis that the 21 person first brought an action under this subchapter. 22 § 8350.2. Elements of cause of action. 23 A complaint, counterclaim or joinder complaint is frivolous 24 when the party filing the complaint, counterclaim or joinder 25 complaint has not produced reasonable evidence establishing 26 facts essential to the allegations set forth in the complaint, 27 counterclaim or joinder complaint or has not proposed reasonable 28 action to be taken by that party to produce or present such 29 evidence and one of the following elements is proven by a 30 preponderance of the evidence: 20010S0406B2449 - 2 -
1 (1) the civil complaint, counterclaim or joinder 2 complaint is presented primarily for an improper purpose, 3 including, but not limited to, harassment, interruption of 4 any lawful business activity, intentional infliction of 5 emotional distress or unwarranted pecuniary gain; or 6 (2) the claims set forth in the civil complaint, 7 counterclaim or joinder complaint are not warranted by 8 existing law or by a reasonable argument for the extension, 9 modification or reversal of existing law or the establishment 10 of new law. 11 § 8350.3. Procedure. 12 (a) Notice to defendant.--Before filing an action under this 13 subchapter, the plaintiff in this action must notify the 14 defendant in writing of the intention to file the action and 15 attach a copy of the proposed complaint. Each recipient of the 16 proposed complaint shall have 20 days in which to withdraw or 17 otherwise cure the civil complaint, counterclaim, or joinder 18 complaint giving rise to the claim of frivolous litigation. 19 (b) Effect of withdrawal or cure.--If the civil complaint, 20 counterclaim, or joinder complaint is withdrawn or otherwise 21 cured, there shall be no basis for the cause of action, except 22 that the plaintiff shall be entitled to recover court costs, 23 expenses and reasonable attorney fees if the plaintiff files a 24 motion for such recovery within 30 days of a withdrawal. 25 (c) Effect of recovery.--Recovery by an injured party under 26 this chapter shall not preclude the injured party from 27 recovering any damages which the injured party may be entitled 28 to, pursuant to Subchapter E.1 (relating to wrongful use of 29 civil proceedings) and which have not already been recovered 30 pursuant to this chapter. 20010S0406B2449 - 3 -
1 § 8350.4. Damages. 2 When any element set forth in section 8350.2 (relating to 3 elements of cause of action) has been proven by a preponderance 4 of the evidence, the injured party is entitled to recover the 5 following: 6 (1) The harm normally resulting from any dispossession 7 or interference with the advantageous use of the injured 8 party's land, chattels or other things suffered by the 9 injured party during the course of the proceeding. 10 (2) The harm to the injured party's reputation. 11 (3) The cost of litigation, including, but not limited 12 to, any reasonable attorney fees. 13 (4) Lost income that the injured party has incurred in 14 defending himself. 15 (5) Any other pecuniary loss that has resulted from the 16 proceeding. 17 (6) Any other noneconomic loss caused by the 18 proceedings. 19 § 8350.5. Other remedies. 20 Nothing in this subchapter shall be construed to preclude the 21 court from exercising its inherent supervisory power or from 22 imposing appropriate nonmonetary or monetary sanctions upon 23 attorneys, law firms and unrepresented parties who have engaged 24 in frivolous or bad faith litigation under existing law and 25 rules of procedure. 26 § 8350.6. Joint liability. 27 Absent exceptional circumstances, a law firm shall be held 28 jointly responsible for a frivolous civil complaint, 29 counterclaim or joinder complaint filed by attorneys of the 30 firm. 20010S0406B2449 - 4 -
1 Section 2. The heading of Subchapter E of Chapter 83 of 2 Title 42 is amended to read: 3 SUBCHAPTER [E] E.1 4 WRONGFUL USE OF CIVIL PROCEEDINGS 5 Section 3. Section 8351 of Title 42 is amended by adding a 6 subsection to read: 7 § 8351. Wrongful use of civil proceedings. 8 * * * 9 (c) Relationship to other action.--The action established 10 under this subchapter is a separate cause of action than that 11 provided for under Subchapter E (relating to frivolous 12 litigation). A person may not be precluded from bringing an 13 action pursuant to this subchapter on the sole basis that the 14 person first brought an action under Subchapter E. 15 Section 4. The provisions of this act are nonseverable. In 16 the event any provision in this act is held legally or 17 constitutionally impermissible, suspended by the judiciary, 18 superseded by rule of court, ruled to be the regulation of the 19 practice of law or otherwise rendered inoperative by judicial 20 action this entire act shall be void. 21 SECTION 1. SECTION 8542(B) OF TITLE 42 OF THE PENNSYLVANIA <-- 22 CONSOLIDATED STATUTES IS AMENDED BY ADDING A PARAGRAPH TO READ: 23 § 8542. EXCEPTIONS TO GOVERNMENTAL IMMUNITY. 24 * * * 25 (B) ACTS WHICH MAY IMPOSE LIABILITY.--THE FOLLOWING ACTS BY 26 A LOCAL AGENCY OR ANY OF ITS EMPLOYEES MAY RESULT IN THE 27 IMPOSITION OF LIABILITY ON A LOCAL AGENCY: 28 * * * 29 (9) UNAUTHORIZED ENACTMENT OR ENFORCEMENT OF LOCAL 30 ORDINANCES GOVERNING NORMAL AGRICULTURAL OPERATIONS, AS 20010S0406B2449 - 5 -
1 PROVIDED IN SECTION 8550.1 (RELATING TO UNAUTHORIZED 2 ENACTMENT OR ENFORCEMENT OF LOCAL ORDINANCES GOVERNING NORMAL 3 AGRICULTURAL OPERATIONS). 4 SECTION 2. TITLE 42 IS AMENDED BY ADDING A SECTION TO READ: 5 § 8550.1. UNAUTHORIZED ENACTMENT OR ENFORCEMENT OF LOCAL 6 ORDINANCES GOVERNING NORMAL AGRICULTURAL OPERATIONS. 7 (A) RIGHT OF ACTION.--ANY PERSON WHO IS AGGRIEVED BY AN 8 ENACTMENT OR ENFORCEMENT OF AN UNAUTHORIZED LOCAL ORDINANCE 9 GOVERNING NORMAL AGRICULTURAL OPERATIONS MAY BRING AN ACTION 10 AGAINST THE LOCAL AGENCY IN A COURT OF APPROPRIATE JURISDICTION 11 TO INVALIDATE THE ORDINANCE OR ENJOIN THE ENFORCEMENT THEREOF. 12 (B) ATTORNEY FEES AND COSTS.-- 13 (1) IF THE COURT DETERMINES THAT OFFICIALS OR EMPLOYEES 14 OF THE LOCAL AGENCY ENACTED OR ENFORCED AN UNAUTHORIZED LOCAL 15 ORDINANCE GOVERNING NORMAL AGRICULTURAL OPERATIONS WILLFULLY 16 OR WITH WANTON DISREGARD OF THE LIMITATION OF AUTHORITY 17 ESTABLISHED UNDER STATE LAW, THE COURT MAY ORDER THE LOCAL 18 AGENCY TO PAY THE PLAINTIFF REASONABLE ATTORNEY FEES AND 19 OTHER LITIGATION COSTS INCURRED BY THE PLAINTIFF IN 20 CONNECTION WITH THE ACTION. 21 (2) IF THE COURT DETERMINES THAT THE ACTION BROUGHT BY 22 THE PLAINTIFF WAS FRIVOLOUS OR WAS BROUGHT WITHOUT 23 SUBSTANTIAL JUSTIFICATION IN CLAIM THAT THE LOCAL ORDINANCE 24 IN QUESTION WAS UNAUTHORIZED, THE COURT MAY ORDER THE 25 PLAINTIFF TO PAY THE LOCAL AGENCY REASONABLE ATTORNEY FEES 26 AND OTHER LITIGATION COSTS INCURRED BY THE LOCAL AGENCY IN 27 DEFENDING THE ACTION. 28 (3) ATTORNEY FEES AND LITIGATION COSTS WHICH MAY BE 29 AWARDED UNDER THIS SECTION ARE NOT SUBJECT TO THE LIMITATION <-- 30 IN LIABILITY OTHERWISE PRESCRIBED IN THIS SUBCHAPTER. 20010S0406B2449 - 6 -
1 (C) RIGHT OF ACTION NOT EXCLUSIVE.--ANY ACTION BY OR AWARD <-- 2 TO AN AGGRIEVED PERSON UNDER THIS SECTION SHALL NOT BAR ANY 3 OTHER ACTION WHICH MAY OTHERWISE BE BROUGHT UNDER THIS 4 SUBCHAPTER AGAINST THE LOCAL AGENCY OR OFFICIAL OF THE LOCAL 5 AGENCY FOR WILLFUL MISCONDUCT. 6 (D) (C) EFFECT ON OTHER POWERS AND DUTIES.--NOTHING IN THIS <-- 7 SECTION SHALL BE CONSTRUED TO DIMINISH OR EXPAND THE AUTHORITY 8 PROVIDED TO ANY MUNICIPALITY: 9 (1) UNDER OTHER LAWS TO REGULATE, CONTROL OR REQUIRE 10 PERMITTING FOR THE LAND APPLICATION OF CLASS A OR B SEWAGE 11 SLUDGE. 12 (2) TO REGULATE AGRICULTURAL OPERATIONS OTHERWISE 13 PROVIDED TO ANY MUNICIPALITY UNDER THE ACT OF MAY 20, 1993 14 (P.L.12, NO.6), KNOWN AS THE NUTRIENT MANAGEMENT ACT, OR 15 OTHER LAWS OF THIS COMMONWEALTH. 16 (E) (D) DEFINITIONS.--AS USED IN THIS SECTION, THE FOLLOWING <-- 17 WORDS AND PHRASES SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS 18 SUBSECTION: 19 "NORMAL AGRICULTURAL OPERATION." AS DEFINED IN THE ACT OF 20 JUNE 10, 1982 (P.L.454, NO.133), ENTITLED "AN ACT PROTECTING 21 AGRICULTURAL OPERATIONS FROM NUISANCE SUITS AND ORDINANCES UNDER 22 CERTAIN CIRCUMSTANCES." 23 "UNAUTHORIZED LOCAL ORDINANCE." ANY ORDINANCE WHICH: 24 (1) PROHIBITS OR LIMITS OR ATTEMPTS TO PROHIBIT OR LIMIT 25 THE PERFORMANCE OF NORMAL AGRICULTURAL OPERATIONS; AND 26 (2) THE LOCAL AGENCY HAD NO LEGAL AUTHORITY TO ENACT OR 27 ENFORCE UNDER STATE LAW OR THE LOCAL AGENCY WAS PROHIBITED OR 28 PREEMPTED UNDER STATE LAW FROM ENACTING OR ENFORCING. 29 SECTION 3. ALL ACTS AND PARTS OF ACTS ARE REPEALED INSOFAR 30 AS THEY ARE INCONSISTENT WITH THIS ACT. 20010S0406B2449 - 7 -
1 SECTION 4. THE ADDITION OF 42 PA.C.S. § 8550.1 SHALL APPLY 2 TO LOCAL ORDINANCES EXISTING AT THE TIME OF AND SUBSEQUENT TO 3 THE EFFECTIVE DATE OF THIS ACT. 4 Section 5. This act shall take effect in 60 days. A12L42SFL/20010S0406B2449 - 8 -