Regular Session 2017-2018 House Bill 0095 P.N. 0077

PRINTER'S NO. 77

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

Session of

2017

INTRODUCED BY BIZZARRO, O'BRIEN, NEILSON, DRISCOLL, CALTAGIRONE,

SCHLOSSBERG, D. COSTA, SIMS, STURLA, McCARTER, McNEILL,

ROZZI, FREEMAN AND SCHWEYER, JANUARY 23, 2017

REFERRED TO COMMITTEE ON JUDICIARY, JANUARY 23, 2017

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 finds and declares as follows:

(1) 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.

(2) It is in the public interest to encourage continued

participation in matters of public significance, and this

participation should not be chilled through abuse of the

judicial process.

(3) This act is intended to grant immunity to those

groups or parties exercising these rights and to be construed

broadly.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Title 42 of the Pennsylvania Consolidated

Statutes is amended by adding a section to read:

§ 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 that communication. If a

legal action is instituted against a party which is based on,

relates to or is in response to the party's constitutionally

protected communication, that party may file a motion to dismiss

the legal action in accordance with 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 the court deems

proper.

(2) The motion to dismiss shall be scheduled by the

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) If 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 costs, fees and damages.

action shall be stayed upon the filing of a motion to dismiss

under this section. The stay shall remain in effect until the

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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

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

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 the 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, the following shall apply:

(i) The claim or part thereof shall proceed as a

civil action in accordance with general rules.

(ii) The following may not be admissible as evidence

at any later stage of the case or in a 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:

(A) The determination that the claim is not in

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whole or in part based on constitutionally protected

communication.

(B) The fact of that determination.

(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 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

persons 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

any doubt regarding whether a communication is protected speech

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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." Communication

including any written, oral, audio, visual or electronic

statement or writing 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) Communication 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) Communication 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) Communication that is 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.

(4) Communication 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

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

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Commonwealth, 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.

Section 2. This act shall take effect in 60 days.

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