Regular Session 2019-2020 Senate Bill 0095 P.N. 0245

PRINTER'S NO. 245

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

Session of

2019

INTRODUCED BY FARNESE, ARGALL, BREWSTER, FONTANA, MENSCH, COSTA,

HUGHES, HAYWOOD, BLAKE, BOSCOLA, YUDICHAK, BROWNE,

TARTAGLIONE AND LEACH, FEBRUARY 14, 2019

REFERRED TO JUDICIARY, FEBRUARY 14, 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

Statutes is amended by adding a section to read:

§ 8340.4. Immunity for constitutionally protected

communications.

(a) General rule.--A person who engages in a

constitutionally protected communication shall be immune from

any 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 any 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 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

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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 that 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 thereof 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 a 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 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. 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 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

any doubt regarding whether a communication is protected speech

shall be resolved in favor of the position that the

communication is protected speech.

(g) Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

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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

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.

Section 3. This act shall take effect in 60 days.

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