See other bills
under the
same topic
PRINTER'S NO. 97
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
95
Session of
2019
INTRODUCED BY DIAMOND, METCALFE, BIZZARRO, BARRAR, BERNSTINE,
CALTAGIRONE, DRISCOLL, FREEMAN, ISAACSON, JAMES, McNEILL,
MILLARD, B. MILLER, NEILSON, OTTEN, RYAN, SCHLOSSBERG, SIMS,
SOLOMON, STAATS, STURLA, ZIMMERMAN AND JONES,
JANUARY 28, 2019
REFERRED TO COMMITTEE ON JUDICIARY, JANUARY 28, 2019
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
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
Statutes is amended by adding a section to read:
ยง 8340.4. Immunity for constitutionally protected
communications.
(a) General rule.--A person who engages in a
constitutionally protected communication shall be immune from
civil action for claims based upon the communication. If a legal
action instituted against a 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 a later time upon terms the court deems
proper.
(2) The motion to dismiss shall be scheduled by the
court 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 the moving
party's 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
20190HB0095PN0097 - 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
entry of the order ruling on the motion. The court, on the
court's own motion or on motion and for good cause shown, may
order that 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 a
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 demonstrated a probability of
prevailing on those portions of the claim which are not based
upon , 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 of the claim
shall proceed as a civil action pursuant to general rules. In
that event neither 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
20190HB0095PN0097 - 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
subsequent proceeding.
(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, and any additional tax
liability that occurs as a direct consequence of the recovery
of the attorneys 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 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 shall consider any change
in present or future expenses or operating costs to the
moving party. The damages shall be a minimum of $10,000.
Attorney fees, costs or damages due under this section shall
be payable by any person 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, and
any additional tax liability that occurs as a direct
consequence of the recovery of the attorneys fees and costs,
to the nonmoving party prevailing on the motion. Attorney
fees, costs or damages due under this section shall be
payable by any person deemed responsible for the attorney
fees, costs or damages.
(f) Construction.--This section shall be interpreted broadly
as to make its applicability the norm, not the exception, and
20190HB0095PN0097 - 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
any doubt regarding whether a communication is protected speech
shall be resolved in favor of the position that it is.
(g) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Constitutionally protected communication." A 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) a 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) a 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) a 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) a written, oral, audio, visual or electronic
statement or writing that falls within the protection of the
right to petition government or the right to free speech
under the Constitution of the United States or the
20190HB0095PN0097 - 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
Constitution of Pennsylvania.
"Governmental proceeding." A proceeding, other than a
judicial proceeding, conducted by an officer, official or body
of this Commonwealth or a political subdivision of this
Commonwealth, including a board or commission, or by an officer,
official or body of the Federal Government.
Section 3. This act shall take effect in 60 days.
20190HB0095PN0097 - 6 -
1
2
3
4
5
6
7