Regular Session 2015-2016 Senate Bill 0095 P.N. 1152

PRIOR PRINTER'S NO. 654

PRINTER'S NO. 1152

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

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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§ 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.

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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